NE Code § 25-1142 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-1142 - New trial, defined; grounds.

25-1142.  New trial, defined; grounds.A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a trial and decision by the court. The former verdict, report, or decision shall be vacated and a new trial granted on the application of the party aggrieved for any of the following causes affecting materially the substantial rights of such party: (1) Irregularity in the proceedings of the court, jury, referee, or prevailing party or any order of the court or referee or abuse of discretion by which the party was prevented from having a fair trial; (2) misconduct of the jury or prevailing party; (3) accident or surprise, which ordinary prudence could not have guarded against; (4) excessive damages, appearing to have been given under the influence of passion or prejudice; (5) error in the assessment of the amount of recovery, whether too large or too small, if the action is upon a contract or for the injury or detention of property; (6) that the verdict, report, or decision is not sustained by sufficient evidence or is contrary to law; (7) newly discovered evidence, material for the party applying, which the moving party could not, with reasonable diligence, have discovered and produced at the trial; and (8) error of law occurring at the trial and excepted to by the party making the application.Source   R.S.1867, Code § 314, p. 446;   R.S.1913, § 7883;   C.S.1922, § 8825;   C.S.1929, § 20-1142;   R.S.1943, § 25-1142;  Laws 2000, LB 921, § 5. Annotations  1. Irregularity 2. Misconduct 3. Accident or surprise 4. Excessive damages 5. Error in assessment 6. Contrary to evidence or law 7. Newly discovered evidence 8. Error of law 9. Miscellaneous 1. Irregularity Motion for new trial was properly sustained. Hickman-Williams Agency v. Haney, 152 Neb. 219, 40 N.W.2d 813 (1950). Granted on first ground only for irregularities specifically assigned. Risse v. Gasch, 43 Neb. 287, 61 N.W. 616 (1895); Spencer v. Thistle, 13 Neb. 201, 13 N.W. 208 (1882). 2. Misconduct In a motion for new trial, allegations of misconduct by jurors must be substantiated by competent evidence, be related to a disputed matter that is relevant to the issues in the case, and have influenced the jurors in arriving at the verdict. Leavitt ex rel. Leavitt v. Magid, 257 Neb. 440, 598 N.W.2d 722 (1999). Trial court's refusal to order juror to make affidavits as to occurrence in jury, not amounting to reversible misconduct, is not erroneous. Egan v. State, 97 Neb. 731, 151 N.W. 237 (1915). Assertion of opinion or of expert knowledge by jurors in jury room inheres in verdict and is not misconduct; but otherwise as to statements by juror of material facts not in evidence but within his personal knowledge. Corn Exchange Nat. Bank v. Ochlare Orchards Co., 97 Neb. 536, 150 N.W. 651 (1915). Misconduct without knowledge or consent of interested parties will not require reversal, unless verdict affected. Zancanella v. Omaha & C. B. St. Ry. Co., 96 Neb. 596, 148 N.W. 158 (1914). It is misconduct for juror to base verdict upon independent personal knowledge. Falls City v. Sperry, 68 Neb. 420, 94 N.W. 529 (1903). Misconduct of counsel in argument may be ground for new trial. Barr v. Post, 56 Neb. 698, 77 N.W. 123 (1898); Bullis v. Drake, 20 Neb. 167, 29 N.W. 292 (1886). Where it is clear that a verdict of a jury is based on a compromise of the difference of opinion of its individual members and in disregard of the evidence, it is not error to set it aside. Meyer v. Shamp, 51 Neb. 424, 71 N.W. 57 (1897). Misconduct does not necessarily imply evil or corrupt motive. Chicago, St. P., M. & O. R. R. Co. v. Deaver, 45 Neb. 307, 63 N.W. 790 (1895). 3. Accident or surprise Motion to vacate default judgment was in legal effect a motion for new trial. Shipley v. McNeel, 149 Neb. 793, 32 N.W.2d 636 (1948). A variance between the testimony of a witness at the present trial and at a former trial does not require a new trial on the ground of surprise, where the variance is immaterial. Riesland v. Dawson County Irr. Co., 134 Neb. 773, 279 N.W. 726 (1938). New trial on third ground will be denied when based upon facts known to moving party during the trial. Matoushek v. Dutcher & Sons, 67 Neb. 627, 93 N.W. 1049 (1903). In absence of abuse of discretion of trial court, denial of motion for new trial on ground of accident or surprise will not be disturbed. Zimmerer v. Fremont Nat. Bank, 59 Neb. 661, 81 N.W. 849 (1900). 4. Excessive damages When an amount of recovery is excessive and the excess can be reasonably ascertained and a remittitur granted, the amount of the recovery is no longer too large and a new trial is not required. Barbour v. Jenson Commercial Distributing Co., 212 Neb. 512, 323 N.W.2d 824 (1982). In order to grant a new trial because of excessive damages appearing to have been given under the influence of passion or prejudice in a personal injury case, the reviewing court must be able to say, as a matter of law, that the amount is excessive. Hickey v. Omaha & C. B. St. Ry. Co., 140 Neb. 665, 1 N.W.2d 304 (1941). A verdict so clearly excessive as to induce the belief by the reviewing court that it must have been founded on passion and prejudice will be set aside and a new trial awarded. Heiden v. Loup River Public Power Dist., 139 Neb. 754, 298 N.W. 736 (1941). New trial was properly granted on ground of excessive verdict resulting from passion and prejudice. Stewart v. Weiner, 108 Neb. 49, 187 N.W. 121 (1922); Hutchinson v. Western Bridge & Construction Co., 97 Neb. 439, 150 N.W. 193 (1914). Passion or prejudice is not necessarily inferable from excessive verdict. Wainwright v. Satterfield, 52 Neb. 403, 72 N.W. 359 (1897); Omaha Fire Ins. Co. v. Thompson, 50 Neb. 580, 70 N.W. 30 (1897). Verdict of $120,000 for injury to knee resulting in loss of kneecap does not shock the conscience where plaintiff adduced extensive evidence of pain and suffering. Bailey v. AMISUB, 1 Neb. App. 56, 489 N.W.2d 323 (1992). 5. Error in assessment When the amount of the damages allowed by a jury is inadequate under the evidence in the case, it is error for the trial court to refuse to set aside such verdict. Preston v. Farmers Irr. Dist., 134 Neb. 503, 279 N.W. 298 (1938). New trial is not ordinarily granted in personal injury actions on ground of inadequacy of amount of verdict alone. Blakely v. Omaha & C. B. St. Ry. Co., 94 Neb. 119, 142 N.W. 525 (1913); O'Reilly v. Hoover, 70 Neb. 357, 97 N.W. 470 (1903). Error in assessment of amount of recovery cannot be reviewed under assignment in motion of insufficiency of evidence to support verdict. Warner v. Sohn, 85 Neb. 571, 123 N.W. 1054 (1909). Where amount of recovery awarded by verdict is too small, it may call for a reversal of judgment. Yager v. Exchange Nat. Bank of Hastings, 57 Neb. 310, 77 N.W. 768 (1899). Error in assessment of amount of recovery must be specifically set forth. Beavers v. Missouri P. Ry. Co., 47 Neb. 761, 66 N.W. 821 (1896). Assignment of error that verdict is not supported by sufficient evidence is insufficient to raise question of error in failing to allow interest. Riverside Coal Co. v. Holmes, 36 Neb. 858, 55 N.W. 255 (1893). 6. Contrary to evidence or law If a verdict shocks the conscience, it necessarily follows that the verdict was the result of passion, prejudice, mistake, or some other means not apparent in the record. Crewdson v. Burlington Northern RR. Co., 234 Neb. 631, 452 N.W.2d 270 (1990). A trial court may grant a motion for new trial on the ground that the verdict is not sustained by sufficient evidence even though no motion for a directed verdict is made. In re Estate of Kinsey, 152 Neb. 95, 40 N.W.2d 526 (1949). New trial should be granted where verdict is so clearly wrong as to induce belief that it must have resulted from passion, prejudice, mistake, or something not apparent. Burge v. C. F. Adams Co., 98 Neb. 4, 151 N.W. 949 (1915); Fredericks v. Chicago & N. W. Ry. Co., 96 Neb. 27, 146 N.W. 1011 (1914); Garfield v. Hodges & Baldwin, 90 Neb. 122, 132 N.W. 923 (1911). New trial should be allowed where material uncontradicted evidence is clearly disregarded by jury. Hileman v. Maxwell, 97 Neb. 14, 149 N.W. 44 (1914). Verdict should not be set aside if it can be sustained in any rational view of the evidence. Lammers v. Boehmer, 62 Neb. 159, 86 N.W. 1067 (1901). Verdict contrary to law should be set aside if unwarranted by pleadings or in evident disregard of instructions. Westinghouse Co. v. Tilden, 56 Neb. 129, 76 N.W. 416 (1898); Wilson v. City Nat. Bank of Kearney, 51 Neb. 87, 70 N.W. 501 (1897). Verdict clearly and unmistakably against the evidence should be set aside. Lubker v. Grand Detour Plow Co., 53 Neb. 111, 73 N.W. 457 (1897); Norfolk Beet-Sugar Co. v. Koch, 52 Neb. 197, 71 N.W. 1015 (1897). 7. Newly discovered evidence In order to make a sufficient showing for a new trial on the ground of newly discovered evidence, the proof in support thereof must show that such evidence is now available which neither the litigant nor counsel could have discovered by the exercise of reasonable diligence and that the evidence is not merely cumulative, but competent, relevant, and material, and of such character as to reasonably justify a belief that its admission would bring about a different result if a new trial were granted. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007). The lower court did not abuse its discretion in overruling a motion for new trial when any material evidence presented as "newly discovered" could have been discovered and produced at the summary judgment hearing or prior to the entry of summary judgment. Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004). New evidence offered in support of a motion for new trial must be so potent that, by strengthening evidence already offered, a new trial would probably result in a new verdict. State v. Koch, 224 Neb. 926, 402 N.W.2d 275 (1987). A witness' testimony is not newly discovered evidence within the meaning of this section, where plaintiff's counsel knew what the witness' testimony would be but failed to serve a subpoena on the witness and the witness failed to appear at trial. Schroll v. Fulton, 213 Neb. 310, 328 N.W.2d 780 (1983). Where the record revealed that evidence was in existence prior to trial and that neither the litigant nor his counsel, at the time of trial, could show that he exercised due diligence to discover it, the grounds for a new trial based on newly discovered evidence were not satisfied. Smith v. Erftmier, 210 Neb. 486, 315 N.W.2d 445 (1982). Under section 25-1144, an application for new trial on the grounds of newly discovered evidence was required to be supported by affidavit. State v. Belding, 190 Neb. 646, 211 N.W.2d 715 (1973). New trial on the ground of newly discovered evidence may be granted after an appeal to Supreme Court has been taken and disposed of. Finnern v. Bruner, 170 Neb. 170, 101 N.W.2d 905 (1960). Except in extraordinary cases, evidence of facts occurring after the trial will not support a motion for new trial as newly discovered evidence. Wagner v. Loup River Public Power Dist., 150 Neb. 7, 33 N.W.2d 300 (1948). Newly discovered evidence is not a ground for a new trial where the exercise of due diligence before trial would have produced it. Jensen v. John Hancock Mutual Life Ins. Co., 145 Neb. 409, 16 N.W.2d 847 (1944). In order to obtain a new trial on the ground of newly discovered evidence, the evidence alleged to have been newly discovered must be such that the party applying for the new trial could not with reasonable diligence have discovered and produced it at the trial. Gate City Co. v. Douglas County, 135 Neb. 531, 282 N.W. 532 (1938). New evidence must be not merely cumulative but such as to warrant the belief that it might cause a jury to arrive at a different verdict. Miller v. Olander, 133 Neb. 762, 277 N.W. 72 (1938). Motion for new trial was properly overruled where it was based on ground of newly discovered evidence which consisted of facts known to defendant which she failed to give to her attorney. Breen v. Nugent, 133 Neb. 131, 274 N.W. 379 (1937). To warrant new trial for newly discovered evidence, it must appear that evidence could not have been discovered by due diligence, that it renders clear what was before uncertain, and that it will probably bring about a different result. Erwin v. Watson Bros. Transfer Co., 129 Neb. 64, 260 N.W. 565 (1935). Requirement of showing for new trial on ground of newly discovered evidence set forth. Wiegand v. Lincoln Traction Co., 123 Neb. 766, 244 N.W. 298 (1932). New trial should not be granted for newly discovered evidence where alleged new witness was accessible, no good reason being shown why not produced at trial. Buzzello v. Sramek, 110 Neb. 262, 193 N.W. 743 (1923). Motion on ground of newly discovered evidence was properly sustained on strong showing that evidence materially affecting amount of recovery, on point not suggested by pleadings, was untrue, and defeated party might not reasonably have anticipated it. Coon v. Drainage Dist. No. 1, Richardson County, 99 Neb. 138, 155 N.W. 799 (1915). It is indispensable that moving party show diligence. Van Horn v. Cooper & Cole Bros., 88 Neb. 687, 130 N.W. 567 (1911). New trial should not be allowed for newly discovered evidence merely cumulative in its nature. Parkins v. Missouri P. Ry. Co., 79 Neb. 788, 113 N.W. 265 (1907). Application for new trial on ground of newly discovered evidence must show facts constituting alleged due diligence; statement in language of statute is insufficient. Todd v. City of Crete, 79 Neb. 677, 115 N.W. 307 (1908); Heady v. Fishburn, 3 Neb. 263 (1874). The newly discovered evidence must be of such controlling nature as probably to change the result. Dickinson v. Aldrich, 79 Neb. 198, 112 N.W. 293 (1907); Williams v. Miles, 73 Neb. 193, 102 N.W. 482 (1905). Application for new trial on ground of newly discovered evidence should, when practicable, be verified by both party and his attorney. Nebraska Tel. Co. v. Jones, 60 Neb. 396, 83 N.W. 197 (1900); Draper v. Taylor, 58 Neb. 787, 79 N.W. 709 (1899). Application on ground of newly discovered evidence should be accompanied by affidavit of new witness, or absence accounted for. Nebraska Tel. Co. v. Jones, 60 Neb. 396, 83 N.W. 197 (1900). 8. Error of law Assignment in motion for new trial that errors of law occurred at the trial does not present correctness of giving or refusing instructions. Drucker v. Goscar, Inc., 184 Neb. 475, 168 N.W.2d 534 (1969). An error of law occurring at the trial must be raised by appropriate motion or request in the trial court. Zavoral v. Pacific Intermountain Express, 178 Neb. 161, 132 N.W.2d 329 (1965). Error without prejudice is not sufficient to cause granting of a new trial. Klein v. Wilson, 167 Neb. 779, 94 N.W.2d 672 (1959). Where refusal to give a requested instruction is not alleged as error in motion for new trial, it may not be asserted as error on appeal. Robinson v. Meyer, 165 Neb. 706, 87 N.W.2d 231 (1957). An order overruling motion to strike petition or to strike from petition will be reviewed on appeal although not assigned as error in motion for new trial. Weideman v. Peterson's Estate, 129 Neb. 74, 261 N.W. 150 (1935). Error in giving or refusing instructions must be specifically assigned. Phoenix Ins. Co. v. King, 52 Neb. 562, 72 N.W. 855 (1897). A motion for new trial should be granted only where there is an error prejudicial to the rights of the unsuccessful party. Cotton v. Gering Pub. Sch., 1 Neb. App. 1036, 511 N.W.2d 549 (1993). Inadvertent mention of plaintiff's lack of health insurance is not prejudicial error requiring mistrial where it is not shown that jury inferred that plaintiff was incapable of paying expenses. Bailey v. AMISUB, 1 Neb. App. 56, 489 N.W.2d 323 (1992). 9. Miscellaneous A motion for new trial, under this section, is not an effective motion to terminate the running of time to file notice of an appeal when the court grants a motion for summary judgement. Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017). A motion which purportedly seeks a "new trial" after an entry of a summary judgment is not a proper motion for new trial. A new trial is a reexamination of an issue of fact by the same court, and a trial court does not resolve factual issues when ruling on a motion for summary judgment. Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004). A party seeking to prove that the opposing party was driving a particular vehicle could have, with reasonable diligence, discovered the vehicle's odometer reading prior to a summary judgment hearing on the matter. Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004). In reviewing the district court's order granting a new trial, the decision of the trial court will be upheld in the absence of an abuse of discretion. Bowley v. W.S.A., Inc., 264 Neb. 6, 645 N.W.2d 512 (2002). The only pleading which tolls the time for the filing of an appeal is a motion for new trial as set out in this section, and the motion must state the statutory grounds found in this section. Breeden v. Nebraska Methodist Hosp., 257 Neb. 371, 598 N.W.2d 441 (1999). A motion to vacate an order of dismissal is equivalent to a motion for new trial. Abboud v. Cutler, 238 Neb. 177, 469 N.W.2d 763 (1991). Motion to correct verdict forms, because it sought not a reexamination of an issue of fact but, rather, an investigation into a possible clerical error of the jury, was not a motion for new trial and thus not subject to the 10-day filing limit imposed by section 25-1143. Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871, 468 N.W.2d 350 (1991). The Nebraska Workers' Compensation Act does not provide for a motion for new trial in the Nebraska Workers' Compensation Court. Carter v. Weyerhaeuser, 234 Neb. 558, 452 N.W.2d 32 (1990). A motion for new trial is authorized after a judgment notwithstanding the verdict and, during pendency of such motion, suspends or tolls the time limit to comply with requirements for an appeal to the Nebraska Supreme Court. Dunn v. Hemberger, 230 Neb. 171, 430 N.W.2d 516 (1988). Since a new trial is a reexamination in the same court of issues previously decided by it, the constitutional issues not raised by the pleadings may not be raised in the motion for a new trial. State ex rel. Douglas v. Schroeder, 212 Neb. 562, 324 N.W.2d 391 (1982). None of the grounds for a new trial, except for newly discovered evidence, include remedying a proof defect. Battiato v. Falstaff Brewing Corp., 212 Neb. 474, 323 N.W.2d 105 (1982). The trial court has the power and the authority to grant a new trial where such legal cause or reason therefor appears in the record and timely appropriate motions for a new trial have been filed, notwithstanding the fact that no preliminary motion for a directed verdict has been made. Lockhart v. Continental Cheese, Inc., 203 Neb. 331, 278 N.W.2d 604 (1979). Diligent discovery before trial requires litigant to attempt examination where on notice that evidence may be relevant. Maddox v. First Westroads Bank, 199 Neb. 81, 256 N.W.2d 647 (1977). Trial court had authority to vacate judgment it had entered for plaintiff after trial to the court, and to then enter judgment for defendants on motion couched in terms of section 25-1315.02. Woodmen of the World Life Ins. Soc. v. Peter Kiewit Sons' Co., 196 Neb. 158, 241 N.W.2d 674 (1976). On appeal from a county or municipal court, notice of appeal and bond must be filed within ten days after rendition of judgment and this period cannot be prolonged by filing a motion for new trial. Edward Frank Rozman Co. v. Keillor, 195 Neb. 587, 239 N.W.2d 779 (1976). The constitutionality of the guest statute could not be first raised in the motion for new trial. Zoimen v. Landsman, 192 Neb. 561, 223 N.W.2d 49 (1974). An issue of constitutionality not raised in the pleadings cannot be raised in a motion for new trial. Hale v. Taylor, 192 Neb. 298, 220 N.W.2d 378 (1974). If a new trial will involve the reexamination of an issue of fact, the granting thereof is appealable. Morford v. Lipsey Meat Co., Inc., 179 Neb. 420, 138 N.W.2d 653 (1965). A new trial is a reexamination in the same court of an issue of fact. Central Sur. & Ins. Corp. v. Atlantic Nat. Ins. Co., 178 Neb. 226, 132 N.W.2d 758 (1965). Motion for new trial in divorce action specified four of the eight grounds set forth in this section. Isom v. Isom, 176 Neb. 344, 126 N.W.2d 198 (1964). A new trial does not involve an original examination of issues, but only re-examination. Otteman v. Interstate Fire & Cas. Co. Inc., 171 Neb. 148, 105 N.W.2d 583 (1960). A motion for a new trial within the purview of this section must be for a complete new trial. Harman v. Swanson, 169 Neb. 452, 100 N.W.2d 33 (1959). Failure of litigant to ascertain facts shown by an existing public record is not reasonable diligence. Wemmer v. Young, 167 Neb. 495, 93 N.W.2d 837 (1958). Motion for new trial is proper even though ruling thereon does not require a re-examination of an issue of fact. Brasier v. Cribbett, 166 Neb. 145, 88 N.W.2d 235 (1958). Assignments of error on appeal may not be sufficient although substantially in the language relating to motions for new trial. Backer v. City of Sidney, 165 Neb. 816, 87 N.W.2d 610 (1958). Motion for new trial by plaintiff was sufficient as to joint defendants. Wisnieski v. Moeller, 165 Neb. 476, 86 N.W.2d 52 (1957). Assignments of error couched in exact words of motion for new trial generally are insufficient. Wieck v. Blessin, 165 Neb. 282, 85 N.W.2d 628 (1957). Motion for new trial may be granted although no preliminary motion for directed verdict has been made. Kohl v. Unkel, 163 Neb. 257, 79 N.W.2d 405 (1956). The grounds for a new trial are statutory. State v. Kubik, 159 Neb. 509, 67 N.W.2d 755 (1954). Supreme Court may consider on appeal an additional reason for granting of new trial. Danielsen v. Eickhoff, 159 Neb. 374, 66 N.W.2d 913 (1954). If legal reason exists, court should sustain motion. Pongruber v. Patrick, 157 Neb. 799, 61 N.W.2d 578 (1953). Assignment of error in language of statute was sufficient. Lund v. Holbrook, 153 Neb. 706, 46 N.W.2d 130 (1951). Motion filed setting up grounds under this section did not authorize vacation of judgment after term. Nemetz v. Nemetz, 152 Neb. 178, 40 N.W.2d 685 (1950). A new trial is a reexamination in the same court of an issue of fact. Krepcik v. Interstate Transit Lines, 151 Neb. 663, 38 N.W.2d 533 (1949). To be ground for new trial, error must affect materially the substantial rights of a party. Greenberg v. Fireman's Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772 (1949). The remedy provided for errors committed during a trial is a new trial. Schnell v. United Hail Ins. Co., 145 Neb. 768, 18 N.W.2d 112 (1945). When a general verdict is vacated or set aside by the trial court for errors specified in this section, it should award a new trial. In re George's Estate, 144 Neb. 915, 18 N.W.2d 68 (1945). It is sufficient to set out grounds for new trial in language of the statute. McCullough v. Omaha Coliseum Corporation, 144 Neb. 92, 12 N.W.2d 639 (1944). A copy of the provisions of this section is insufficient as an assignment of errors upon appeal. Labs v. Farmers State Bank of Millard, 135 Neb. 130, 280 N.W. 452 (1938). Power of setting aside a verdict on ground that it is excessive should be used sparingly. Watson v. Miller, 131 Neb. 74, 267 N.W. 230 (1936). Where defendant's motion for new trial is sustained, former judgment set aside, and judgment of dismissal of cause of action is entered, plaintiff becomes the "aggrieved party" with right to present motion for a new trial. Elfers v. Schuff & Sons Hotel Co., 127 Neb. 236, 254 N.W. 885 (1934). Statute does not abridge the inherent power of the court to vacate or modify its own judgments during the term. Lyman v. Dunn, 125 Neb. 770, 252 N.W. 197 (1934). Procedure under tax foreclosure statute necessarily invokes equity jurisdiction, hence motion for new trial hereunder was not required. Douglas County v. Barker Co., 125 Neb. 253, 249 N.W. 607 (1933). In absence of motion for new trial, the only question presented by record is determination of whether defendant's answer supports judgment entered. Hamaker v. Patrick, 122 Neb. 688, 241 N.W. 537 (1932). When, in equity case, Supreme Court on appeal directs trial court to enter different judgment, defeated party may file motion for new trial within three days after entry thereof. Ward v. Geary, 115 Neb. 58, 211 N.W. 208 (1926). Affidavits of jurors are incompetent to show how amount of verdict computed. Palmer v. Parmele, 104 Neb. 30, 175 N.W. 649 (1919). Section relates only to applications for new trial at same term judgment was rendered. Wunrath v. Peoples Fur. & Carpet Co., 98 Neb. 342, 152 N.W. 736 (1915). New trial should be granted by equity court where party is deprived of bill of exceptions, because of inability of court reporter to furnish transcript of evidence. Ferber v. Leise, 97 Neb. 795, 151 N.W. 307 (1915). Where special findings are returned, motion for new trial may be filed within three days from entry of judgment vacating general verdict and entering judgment on special findings. Platte County Bank v. Clark, 81 Neb. 255, 115 N.W. 787 (1908). Application must be made during same term, and, except on newly discovered evidence, within three days. Carmack v. Erdenberger, 77 Neb. 592, 110 N.W. 315 (1906). Right to new trial is waived by stay of judgment or decree. Rice v. Parrott, 76 Neb. 501, 107 N.W. 840 (1906), affirmed on rehearing 76 Neb. 505, 111 N.W. 583 (1907); Banks v. Hitchcock, 20 Neb. 315, 30 N.W. 56 (1886). Where error complained of involves no reexamination of issues of fact, motion for new trial is not a prerequisite to review. Bannard v. Duncan, 65 Neb. 179, 90 N.W. 947 (1902). Requirement of filing of motion applies only to issues of fact. Horton v. State ex rel. Hayden, 60 Neb. 701, 84 N.W. 87 (1900). This section does not abridge power of court to vacate its own judgments during term. Bradley v. Slater, 58 Neb. 554, 78 N.W. 1069 (1899). Motion may not be heard in vacation. Hodgin v. Whitcomb, 51 Neb. 617, 71 N.W. 314 (1897). Primary purpose of section is to afford trial court the opportunity to correct its own errors. Weber v. Kirkendall, 44 Neb. 766, 63 N.W. 35 (1895). New trial cannot be granted on grounds other than those prescribed by law. Risse v. Gasch, 43 Neb. 287, 61 N.W. 616 (1895). Motion does not per se stay execution of judgment or decree. Von Dorn v. Mengedoht, 41 Neb. 525, 59 N.W. 800 (1894). Additional grounds are not assignable by amendment at subsequent term. Aultman, Miller & Co. v. Leahey, 24 Neb. 286, 38 N.W. 740 (1888). Motion may be heard at subsequent term. Chadron Loan & Building Assn. v. Scott, 4 Neb. Unof. 694, 96 N.W. 220 (1903). In a trial to establish custody of a child born out of wedlock, a mother's rights were not substantially affected as a result of the father's failure to answer interrogatories. State on behalf of Keegan M. v. Joshua M., 20 Neb. App. 411, 824 N.W.2d 383 (2012). Summary judgment is not a trial within the meaning of this section. Vesely v. National Travelers Life Co., 12 Neb. App. 622, 682 N.W.2d 713 (2004).