Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-24
OREGON SUPREME COURT DECISIONS
Fall Text Published Courtesy A. Turner Reporter Of the
Supremr
DeyalI '. DeYaII. WaIIorn Countr.

Thomas Deyall, appellant. Appeal
I from the circuit court for Wallowa
county. The Hon ]. W. Knowles.
judge. Argued and submitted October
81, 1911, Pendleton term. Thos. NJ
Dill land John P. Ruck on brief) for
respondent A S. Cooley for appel-
lant. Eakin, C. ]. Affirmed.
This is an action to recover judg-
ment for the sum of $1O0S with in
terest and costs upon a decree Of the
circuit court of the state of Wiscon-
sin. This is a second appeal. For
tull statement of the issues see the
same case in 81 Or. 12S.
Upon the second trial had on No
vember 10, 1910, before a jury, YER
dict was rendered for the defendant
and Judgment entered thereon. There
after on the same day a motion for
new trial was filed by plaintiff upon
the following causes: % Because
the court erred in overruling plain
tltts objection to the reception Of any
evidence under the answer. (2) Be-
cause the court erred in admitting
evidence against the objection of the
plaintiff. (S) Because the court erred
in refusing to receive evidence offered
by plaintiff upon the trial. C4) Be-
cause the verdict was contrary to law.
(5) Because the verdict was contrary
to the evidence. CO. Because the court
erred in refusing to direct verdict
upon the motion of plaintiff to find
q LOT
February IA, 1911, being at the same
term of the court, upon consideration
of such motion the court made the
following order: This cause coming
on to be heard this day on the motion
of plaintiff asking that a judgment
heretofore rendered herein be set
aside and new trial granted; plain
tiff appearing by her attorney, Thos.
NJ Dill, and defendant appearing by
his attorney A. S. Cooley; and the
court having carefully considered and
weighed all the evidence introduced
on the trial of this case, and having
considered the entire record herein,
including the instructions given to the
jurors; and 1t appearing that among
the instructions given by the court
to the jury was the following: Upon
the other hand. if the defendant has
satisfied you by a preponderance of
the evidence, that said NJ. c. Porter
was not served with said notice on
said Gath day of April, 1907. or that
renewal of said notice at the October
term of said court was not given to
the said Porter, then you should find
for the defendant. And the court be-
lieving that said instruction was err
roneous. under the evidence intro
duced on the trial of this case, and
that said instruction was prejudicial
to the plaintiff; therefore, because of
the giving of said erroneous instruc-
tion as above quoted and for no other
reason or reasons, it is ordered and
adjudged that the Judgment heretofore
rendered in this case be and the same
is hereby set aside, and new trial is
hereby granted" From this order
defendant appealed under sec 54S L.
o. L.
Eakin, c. J. 1t thus appears that,
although there was a motion to set
cretion set aside such motion on the
ground of error not assigned in it,
and the contention of defendant Is,
that the court had no authority to set
aside a verdict upon its own motion
nor upon ground not assigned in
the motion. There is no bill of ex-
ceptions here and the defendant does
not contend that the instruction men
toned in the order was not erroneous.
Therefore, the only question to be
considered is as to the power of the
court to set aside a judgment and
grant a new trial either on its own
motion or upon a ground of error not
assigned in the motion. Although
there seems to be some conflict Of
opinion upon this question, the great
weight of authority sustains the view
that courts of general jurisdiction
have inherent power to correct judi
cial errors for the purpose of pro-
noting impartial administration Of
justice, and the right of a court to
grant a new trial on its own motion
is generally recognized. The Okla
homa supreme court in Long Y. County
Commissioners, ; Okla 1913, has held
to the contrary, citing no au-
thority other than its own statute, the
language of which is not materially
different from that of other states
to the granting of new trials.
Section 4493, Code of 1893, relating to
for new trial, provides that
"The former verdict shall be
vacated and a new trial granted, on
the application of the party aggrieyed,
for any of the following causes, af-
fecting materially the substantial
rights of such party" and then names
five causes which may be included
in such motion, being identical with
those in other states.
The supreme court of Texas has
held to the same effect in Lloyd v
Brinck et al, 80 Tex. l. The North
Dakota statute expressly authorizes
the court on its own motion to yacate
a verdict for certain causes which
has effect to preclude the considera-
ton of any others The statutes Of
California and South Dakota have
similar provisions and therefore have
no application upon this question. On
the contrary the code Of Iowa Of 1897
sec 27j5, provides that "The former
verdict shall be vacated and a
new trial granted on the application
of the party aggrieyed, etc, being
the exact language Of the Oklahoma
statute.
In Allen " Wheeler, "a Iowa G3l
in considering the power Of the court
to grant a new trial on its own motion
IL is said that his statute does not
provide that the court may not upon
its own motion, and for error which is
apparept set aside a verdict Such