Libby v. Dalton

No New Trial for Insufficiency when* Evidence not all before Court. Orders denying motions for new trial on the ground of insufficiency of evidence, made upon statements failing to expressly show that all the evidence was before the court, have been uniformly affirmed. New Trial ’for Insufficiency, Granted on Defective Statement, will be Reversed. When the statement upon motion for new trial is the only statement used on appeal, the appellate court stands on the same plane as the court below in reviewing the evidence ; and if, in a case where the statement fails to show that it contains all the evidence, a new trial has been granted on the ground of insufficiency of evidence, it will be reversed. New Trial Statement Should Affirmatively show all the Evidence. Where the statement on motion for new trial does not affirmatively appear to contain all the evidence, the existence of other evidence will be assumed. Long Established Rule of Practice — Stare Decisis. A rule of practice, .long established and repeatedly sanctioned, will be adhered to, though it originated in error.

Appeal from the District Court of the .Second Judicial District, "Washoe County. This was an action against Peter Dalton as principal and John S. Bowker and A. A. Longley as sureties, on an injunction undertaking to recover the sum of fifteen hundred and fifty dollars damages. There was a verdict and judgment for plaintiff in the sum of seven hundred and fifty dollars. Afterwards a motion for a new trial was made by defendants, on the grounds, among others, of excessive damages and insufficiency of the evidence to justify the verdict; and a statement was filed upon said motion, certified by the judge below to “ set forth all the material testimony adduced at the trial.” Subsequently an order was entered granting a new trial,. to take effect on March 31, 1873, unless before that time the plaintiff should remit all his damages over three hundred dollars. Plaintiff declined to remit, pud appealed from the order. I. The statement on motion for a new trial, which is also the statement on appeal, fails to show that it contains all the evidence. Sherwood v. Sissa, 5 Nev. 355; Cajoles v. Central Pacific B. B. Co., 6 Nev. 271. II. The court below could not impose terms and make the condition, that plaintiff consent to a reduction of his judgment, when the new trial was granted upon the ground of insufficiency of the evidence to justify the verdict. I. The order granting a new trial on the ground of insufficiency of evidence was not error, though the statement did not show that it contained all the evidence. The statute does not require such a statement to show that it contains all the evidence; a statement can be disregarded for no other-reason, except that it fails to specify the particular errors upon which the party will rely. Practice Act, Sec. 197. In California it has been frequently decided in late cases, overruling former decisions—such as 23 Cal. 103 and 24 Cal. 377—that the presumption is that all the testimony bearing upon the question is contained in the record. Hidden v. Jordan, 28 Cal. 303; Smith v. Anthon, 34 Cal. 511; Clark v. Gridley, 35 Cal. 403. In Hidden, v. Jordan, 28 Cal. 313, the court says: “To require a certificate that the record contains all the evidence introduced on each point specified would only be to add so much useless matter.” We are aware that the Supreme Court of this State has seemed to follow the earlier decisions of California. State v. Bond, 2 Nev. 267; Howard v. Winters, 3 Nev. 543; Sherwood v. Sissa, 5 Nev. 355. In these cases it. is held that the statement must show that it contains all the evidence produced at the trial, before a court will say that the verdict was not justified by the proof; but we submit, that the late California cases state the rule more in accordance with the statutes and legal principles than the earlier California and Nevada decisions. Ought not the same rule now prevailing in California also to prevail in this State? II. In the case at bar, the court which tried the cause granted a new trial, and the appellant asks this court to reverse that decision. It is his duty to affirmatively show error in the decision before he is entitled to a reversal. III. It is also objected that the certificate of the court below, that the statement is' correct and sets forth all the material testimony adduced at the trial, is insufficient. In support of this proposition, we are referred to Capíes v. Central Pacific II. B. Co-, 6 Nev. 271. But in that ease the judge only certified that the statement contained all the evidence brought out at the trial; he failed to show that the statement was correct. Here the judge certified that it was correct. It was in accordance with the statute, and is sufficient.