Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-24


court of the power to order a new
trial on grounds not raised therein.
This must necessarily be so, for one
Of the controlling reasons for the ex-
istence Of the power is to entitle the
court TO guard the rights of the par
ties who, for some cause, have proven
unable to protect themselves. and an
other to enable the court to correct its
error rather than wait for this to be
done by the appellate court" To this
case there is appended a note in Ii A.
& f. A. c. 65, reviewing the authori-
ties, in which the author says, that
this power is generally recognized;
that the provisions of the statute reg
ulating motions for new trial do not
prevent the court from granting a new
trial on its own motion. The Min
nesota code of 1905. sec 1885, is very
similar to that of Iowa and Oklahoma
and in Bank of Willmar V. Lawler, rs
Mimi. 1856, it is said: Appellant con-
tends that as our statute provides that
the notice of motion for a new trial
shall be in writing, and shall state
the grounds of the motion, the court
below had 10 authority to grant a
new trial on its own motion. Under
the common law practice, 1t was we'll
settled that the trial court could
grant a new trial on its own motion.
.. Our code of civil procedure
does not expressly cut off this power
of the court, and, in our opinion, does
not do so by implication, although the
code may to some extent limit or
modify that power *". The pro-
visions of such a statute regulating
motions for a new trial do not prevent
the court in a proper case, from grant
ing new trial on its own motion"
In State eX rel. V. Adams, "a Mo.
S15. it is said: IF the court commits
palpable error, in an instruction to
the jury, or witnesses misconduct Of
members of the jury, which on motion
would authorize it to set aside the
verdict, shall 1t, on account of the
ignorance, or timidity of the aggrieved
party which prevents him from NOV
ing in the matter, render an unjust
judgment on the verdict? If the jury
find verdict palpably against the
law as declared by the court, is it
powerless to maintain its own dignity
and self-respect, unless some one who
feels aggrieved, shall move in the
matter? That this power may be
abused by the court, is no argument
against its existence. The appellate
courts will find way to correct any
abuse of the power by the lower
courts, It is conceded by the court
of appeals, in the opinion delivered in
this cause, that, at common law, this
power could be exercised by the courts
independent of any application by a
party for its exercise And that
our statute, prescribing the time with
in which a party may file a motion
to set a side verdict, does not con-
fer upon the court any power which
did not previously exist, or abridge
the recognized power of the court,
but simply regulated the privilege Of
the parties to the suit"
In Railey v. Railroad, 11S Mo. 473,
1t is held that the court Is not con-
fined to the grounds assigned in the
motion, but may consider any good
cause, and the appellate court, in re-
viewing the action of the trial court,
will not be confined to the grounds
stated in the order of the court, but
may consider any ground set out in
the motion. The Nebraska Code of
1891, sec 1885, is in effect identical
with that of Iowa, and in Weber v.
Kirkendall A Neb. 766, 769, the court
say: I'VE do not doubt the power of
the trial court to reeXamine It's record
and to set aside a verdict on account
of prejudicial error on its own motion
in the absence of a request by either
party .. The rule thus recognized
has not only the sanction of author
ity, but rests upon the soundest and
most satisfactory reasons. The power
is inherent"
Additional cases recognizing this
power are Cleveland, etc. r. Co. v.
Miller, 165 Ind. 3S7 Ft. Wayne, etc.
r. Co. v Donovan, 10 Mich. 173;
Schmidt V. Brown, 81 n. Y. 1888; Eggen
v Fox, 124 Wis. 534. See also 20
Cyc 929
This was also the rule in Massachu-
setts prior to 1897: Ellis V. Ginsburg,
1853 Mass. 143. But by a legislative
act Of that year it was provided that
a verdict shall not be set aside except
by motion in writing which, It has
been held, takes from the court the
power to act upon its own motion:
Pierson v. Boston El r. Co., 191 Mass
229. These authorities, however, re-
cOgnize the fact that 1t is within the
power Of the court to abuse this right
and that 1t should only be exercised
in extreme cases where without It
there would be a miscarriage of JUS
tice.
In Bank of Willmar " Lawler, Isl
MINI. 1856, 1t Is said that, as a gem
eral rule, the trial courts should not
exercise this power except in aggra-
waited cases, and in Hensley v. David
son Bros Co., 1876 Iowa 10G, It Is said
that resort to this power will rarely
be required, and It should be exercised
with great caution and in aggravated
cases only. Ample provisions are to
be found in the code Of procedure for
the protection of itlgants on their own
application and for the court to inter
fere without affording the defeated
party an opportunity TO elect whether
he will accept the result, lays It open
to the suspicion Of partlsanship."
Thus we see that, by virtue Of the
inherent power Of the court, II has
authority on It's own motion or for
causes other than those assigned in
motion to set aside judgment and
grant new trial unless such power
Of the court has been limited By stat
ute The statute Of Oregon, sec ia,
L. o L., relating to motions for new
trials is in effect the same as that
Of Iowa, above quoted, namely "A