Generally.

same.

tiff for seventeen dollars, and the defendant when the only evidence of that fact, which is moved the court for a new trial, which motion | brought before the appellate court, is the reciwas supported by the affidavit of the justice tation of the clerk in making up the journal stating the denial by the defendant of the plain- entry. Knight v. Kelley, 10 Iowa, 104. tiff's account, on the trial below, and also that 32. Not ordered when result would be the he filed a set-off to the amount of twenty three The judgment of the court below will dollars, etc., and which motion was overruled not be reversed, because of error in the ruling and a new trial refused; and where it appeared of the court on a legal proposition, when the from the transcript of the justice that the plain-record shows that with such error corrected the tiff's demand against the defendant was twenty- verdict on a second trial would be the same as two dollars for services rendered as a physician, the one first rendered. Braddy & Braddy v. and that on the day of trial the parties appeared | Lumery et al., 11 Iowa, 29; Speers v. Fortner, 6 and the defendant filed his set-off for four Ibid. 553; Dawson v. Wisner, 11 Ibid. 6; Pelameals charged to plaintiff and son, making eight mourges v. Clark, 9 Ibid. 1; Woodicard v. Horst, meals at twelve and a half cents, making one 10 Ibid. 120. dollar and seventy five-cents, and allowing the plaintiff for The Journal, one dollar; and that after the examination of the witnesses, and hearing the allegations and proofs of the parties," the justice rendered a judgment in favor of the plaintiff against the defendant for seventy-five cents and costs of suit; it was held, that the court should have sustained the motion and granted a new trial. Clark v. Barnes, 7 Iowa, 6. 28. Affirmative error: supervisory power. While the supreme court will exercise a supervisory control over the action of the district court in either granting or refusing new trials, yet in these as in other cases the error in the

action of the court below must be made to appear affirmatively. Finley v. David, 7 Iowa, 3.

33. Conditions imposed by court. The district court may impose conditions upon the successful party, to avoid granting a new trial in actions upon either contracts or torts. Dawson v. Wisner, 11 Iowa, 6; Brockman v. Berryhill, 16 Ibid. 183; Blakely v. Bird, 12 Ibid. 601.

34. Discretion on facts reviewed. The appellant moved the court below to grant a new trial, on the ground that the finding of the court was not supported by the evidence, all of which was made of record. Held, that the supreme court will review the exercise of the discretion by the court below in overruling the motion. In the matter of the will of Henry Coffman, 12 Iowa, 491.

35. Error committed by referee. An error committed by a referee before whom a cause is tried, if corrected by district court, is no suffi

supreme court. Drath v. Deitz, 15 Iowa, 436. 36. Should not be granted on doubtful grounds. A new trial should not be granted on doubtful or technical grounds, or where substantial justice has been done below. Shepherd v. Brenton, 15 Iowa, 84; Woodward v. Horst, 10

29. Where it is apparent from the amoun in controversy and the character of the ques-cient cause for reversal of the judgment by the tions involved, that the court below might reasonably conclude that a new trial was necessary in order to arrive at the merits of the case; and where it is certified to the supreme court that the court below, with a full knowledge of all the circumstances as they transpired at the trial, deemed such second trial necessary, in order to more thoroughly investigate the questions both of law and fact, the appellate court will not disturb the order granting a new trial. Ibid.

30. By district court. It is competent for the district court to order a new trial when satisfied that an error has been committed to the prejudice of either party, whether exceptions were taken to the action of the court at the time or not. Farr v. Fuller, 8 Iowa, 347.

31. Sunday judgment. A judgment will not be reversed because it was rendered on Sunday,

Ibid. 121.

A

37. Reversing order for new trial. stronger case must be made to justify the interposition of the appellate court, when a new trial has been granted by the court below, than when it has been refused. Ruble v. McDonald, 7 Iowa, 90; Finley v. David, Ibid. 3; Newell v. Sanford, 10 Ibid. 396; Shepherd v. Brenton, 15 Ibid. 84; Alger v. Merritt, 16 Ibid. 121; White v. Poorman, 24 Ibid. 108; Robenson v. Bacon et al., 24 Ibid. 409; Roberts & Bro. v. Jones, 30 Ibid. 525; Tegeler & Co. v. Jones, 33 Ibid. 234; Chapman v. Wilkinson, 22 Ibid. 541.

The Motion.

actually a copy of the one filed in the case at bar. Eastman v. Moore, 14 Iowa, 586.

43. When made. Motions for a new trial or in arrest of judgment must be made within a reasonable time and at the term of court in which the trial takes place. Laird v. Ashley, 1 Iowa, 570.

38. Where order was reversed. Defense failure of consideration by reason of the breach of a covenant of general warranty, in a deed conveying land for the purchase-money of which the note was executed. On the trial it was shown that at the time of the conveyance a judgment against the grantor was on file in the proper county; that the land conveyed was subsequently sold on ex- 44. A motion for a new trial on any other ecution by the sheriff, but the sheriff's deed, gronnd than that of newly-discovered evidence which was offered in evidence, did not show should be filed within three days after the dethat the execution upon which the sale was cision of the case. If filed later it should be made was issued upon the same judgment overruled. Boardman v. Beckwith et al., 18 which was on file when the defendant received Iowa, 292; Stiles & Winter v. The Estate of his deed from the payee of the note. Judgment | Botkin, 30 Ibid. 60. for plaintiff'; and defendant, in support of a motion for a new trial, showed that within three days after the trial the sheriff of the same county executed a new deed to the purchaser at the sheriff's sale, supplying the omissions in the recitals of the deed which had been received in evidence. It was held, that the court erred in refusing to grant a new trial, and that the order overruling the motion should be reversed. Deere & Co. v. McConnell, 15 Iowa, 269. See Floyd & Underwood v. Hamilton, 10 Ibid. 552.

II. THE MOTION.

45. When disposed of. The law primarily contemplates the disposition of motions for new trials at the trial term, and they should never be continued, except from the necessity of the case. Laird v. Ashley, 1 Iowa, 570.

46.

particular case. The plaintiff recovered a judgment against the defendant at a regular term of the district court, and afterward at a special term the defendant filed a motion in arrest of judgment and for a new trial, for alleged errors in the previous trial, to which mo tion the plaintiff objected, which objection was overruled, the motion sustained and the new

39. When motion entertained. After judg-trial granted, for the reason that the court had ment is entered upon the verdict of a jury it is told the counsel for the defendant, at the reg

not proper to entertain a motion to set aside the verdict without first having the judgment opened. Cook et al. v. United States, 1 G. Gr. 39. 40. Second motion for. After final judgment has been entered and an application for a new trial overruled, it is irregular to entertain a second motion for that object; but after the court has granted such a new trial the plaintiff, by appearing and amending his declaration, waives the irregularity. Powers v. Bridges, 1

G. Gr. 235.

41. What question may not be raised. A question which strikes at the cause of action and should have been raised by demurrer cannot be raised by a motion for a new trial. Veach v. Thompson, 15 Iowa, 380; Garland v. Wholeham, 20 Ibid. 271; Childs v. Griswold, 15 Ibid. 439.

42. Sufficiency of notice of. A notice of a petition for a new trial directed to the plaintiff but giving no title of any cause, and naming no other parties is insufficient; and it will not be aided by reference to the petition served therewith, where it does not affirmatively appear from the return that the petition delivered was

ular term, that they could have until the special term to file the motion. Held, that the court

had no right to entertain the motion, and that the order setting aside the verdict and granting

a new trial was erroneous. Ibid.

Where

47. Judgment in supreme court. a judgment by default is appealed from and affirmed in the supreme court on the ground that no motion to open the default was made in the court below, such affirmance does not estop the defendant from afterward making the motion for a new trial in the court below, under Revision, section 3160, within the time prescribed by that section. Berryhill v. Jacobs et al., 19 Iowa, 346.

48. Motion to set aside judgment. Where the record showed a trial of a cause, after the appearance of the parties and joinder of issue with a judgment for the plaintiff, after which the defendant filed a motion to set aside the judgment, which motion was sustained by affidavits alleging that he had a perfect defense, that he appeared at the term at which judgment

The Motion.

1

terposed and is sustained by the court, and the tion 3160, Revision of 1860. Held, that the judgment against the defendant is arrested, and judgment of affirmance did not affect the deone is entered against the plaintiff for costs, a fendant's right to make the motion in the court motion for a new trial is not necessary in order below, within the time prescribed by said secto present exceptions duly taken on appeal. tion. Berryhill v. Jacobs et al., 20 Iowa, 246. Coates v. The Galena and Chicago Union R. R. Co., 18 Iowa, 277.

65. When party not estopped to make the motion. Service by publication only; judgment by default; defendant appealed to the supreme court, where the judgment was affirmed on the ground that no motion had been made in the court below for a new trial as provided by sec-will not be reversed because the verdict was not

Grounds of.

70. Failure of court to compel witness. 78. That the court below refused to compel a witness to produce letters in response to a subpana duces tecum issued at the instance of the appellant is not sufficient ground for reversing the judgment below. Manning & Caldwell v. Perkins, 16 Iowa, 71.

71. Diminution of record. A judgment will not be reversed for a mere diminution in the record which might have been perfected by motion made to the court; when not thus perfected the correctness of the proceedings below must necessarily be presumed. Wilson v. Albright, 2 G. Gr. 125.

72. Nonsuit. The supreme court will not, from any supposed or technical error, in overruling a motion in nonsuit, reverse a judgment which was rendered in a trial upon its merits after the ruling of the court upon the motion. Ayers v. Hartford Fire Insurance Company, 17 Iowa, 176.

73. Defective pleadings: venue. That the venue is laid in the declaration in the wrong county is not sufficient ground of reversal. Holmes v. Wright, Mor. 100.

-matter of law in such case. Whether the party applying therefor was entitled to a new trial under such showing is purely a mat ter of law and not of discretion, and the action of the district court therein will be reviewed with the same freedom and upon the like principles as its ruling upon any other question of law. (Stewart v. Ewbank, 3 Iowa, 191; Shaw v. Sweeney, 2 G. Gr. 587; Ruble v. Mc Donald, 7 Iowa, 90; Shepherd v. Brenton, 15 Ibid. 84.) Ibid.

79. Informal oath to jury. A judgment will be reversed when the record shows that the oath administered to the jury was informal, though there is reason to believe that it is the result of a clerical mistake. Roberts v. Smith & Halferty, Mor. 417.

80. Expression of opinion by juror. It is not a ground for a new trial that it was discovered after trial that one of the jurors had expressed an opinion adverse to the plaintiff. Pelton v. Jones, Bacon & Co., Mor. 491.

81. Grounds de hors the record. A motion for a new trial, on grounds de hors the record, should be sustained by extrinsic proof. Cochrane v. Knowles, 3 G. Gr. 115.

82. Grounds must be stated. The grounds relied upon as the basis of a new trial must be set out in the motion therefor or they will not be considered; and affidavits will not be received in support of the same unless thus stated. Beal v. Stone, 22 Iowa, 447.

74. The judgment will not be reversed upon the ground of defects in the pleadings when it is apparent upon the face of the record that the parties have had a full trial, that neither party has been prejudiced by reason of such defect, and that substantial justice has been done. Doniphan & Hughes v. Street, 17 Iowa, 317. 83. Information and belief. A motion for a 75. After a trial upon the merits without ob-new trial based upon an affidavit showing what jection to the pleadings, the judgment will not the defendant is informed and believes he can be reversed because a replication was not filed. prove by certain persons, is not sufficient ground It will be presumed that the replication was for a new trial. McManus v. Finan, 4 Iowa, 283. waived. Sullivan et al. v. Finn, 4 G. Gr. 544.

84. Informal verdict. The supreme court will not disturb a judgment because of an informal verdict when the intentions of the jury are evident and unequivocal. Cane v. Watson, Mor. 52.

76. Failure to swear witness. The fact that a witness who gave material testimony in behalf of the party calling him was not sworn, does not entitle the adverse party as a matter of right to a new trial, when it is not shown but 85. General verdict. When the declaration that he or his attorney knew of the omission in slander contains several counts, two of which before the verdict was returned. Riley v. Mon-charge the speaking of words at different times, ohan, 26 Iowa, 507.

77. An affidavit in such case by the attorney that he did not ascertain that the witness was not sworn until after the jury had retired to consider their verdict, but containing no statement that it did not become known to him before the jury returned their verdict, is insufficient to justify the ordering of a new trial. Ibid.

and a general verdict is rendered, the judgment will not be reversed. Bradley v. Kennedy, 2 G. Gr. 231.

86. Default. That it appears negatively by the record that the defendant was not called when a default was entered against him is not sufficient ground for new trial. Mattoon v. Vanater, Mor. 492.