McDonald v. Weeks & Robinson

New Trial, Petition and Motion for; Error. Where a petition is filed to set aside the verdict of the jury and judgment of the court, and for a new trial, and afterward there is filed an application for a new trial', which application is filed after the term at which the verdict is rendered, and too late to be considered by the court, and upon the hearing of the petition and motion, against the objection of the opposing party, evidence is presented in support of the petition and motion together, and the court refuses to hear the cases separately, and in rendering the judgment granting a new trial disposes of both questions together, and it is impossible to tell whether the court rendered its judgment upon the petition or upon the motion for a new trial, the proceedings are erroneous, and must be reversed.

Error from, Rooks District Court. Action by J. A. Cooper & Co. against Weeks & Robinson and diaries Weeks, on a promissory note. In said action plaintiffs obtained an order of attachment which was levied on a certain stock of goods as the property of Weeks & Robinson. J. A. McDonald, claiming the ownership and possession of the goods attached, filed an interplea, to which plaintiffs filed a general denial. Trial of the action between plaintiffs and the interpleader at the September Term, 1882, when the jury found for the interpleader, and assessed the value of the goods in controversy at $2,166, and the damages sustained by him at $200. Motion to set aside the verdict and for a new trial, overruled, and judgment for McDonald in accordance with the verdict, less $100 of the damages remitted by the interpleader. March 8, 1883, the plaintiffs filed a petition, and afterward an amended petition, to set aside the foregoing judgment and verdict, and for a new trial. The interpleader filed a demurrer thereto, which the court overruled. At the March Term, 1883, during the hearing on the foregoing petition, the record states that the following proceedings were had, to wit: “The plaintiffs filed a motion in-this case to set aside the judgment of the court in the case of J. A. Cooper & Co. v. Weeks & Robinson and Chas. Weeks, and J. A. McDonald, interpleader, and such motion was taken up for hearing with the petition of plaintiffs for vacating the judgment, and setting aside the verdict and for a new trial, over the objections and exceptions of interpleader, J. A. McDonald. The testimony on the petition to vacate the verdict of the jury and for a new trial, also on the motion to vacate the judgment and to dissolve the attachment, was all introduced by the respective parties before any arguments were made by the attorneys upon either, and before the decision of the court upon either question. The interpleader, J. A. McDonald, by his attorneys, asked the court to hear said causes separately, and decide one before either of the other two was taken up. The court decided that all the three questions should be submitted, and that afterward it would take them under advisement, and decide them separately. To the refusal of the court to decide one of the questions before the trial of either of the other two, the defendant excepted. Afterward the arguments were made upon each of the motions and petition separately and distinct from each other, and were decided by the court.” The record further recites that— “On the 23d of March, 1883, this cause came on to be heard by the court, a jury being waived, the court considering said petition and motion together. And after the introduction of evidence in support of each and the argument of counsel, and the court being fully advised in the premises, and after due consideration and deliberation, it is by the court ordered and adjudged that said judgment heretofore rendered by this court in this case as between these plaintiffs and said inter-pleader be vacated, and that the verdict of the jury heretofore rendered in this cause between these plaintiffs and said inter-pleader be set aside, and that each be held for naught, and that a new trial of the issues between these plaintiffs and said interpleader be granted these plaintiffs. To all of which, said interpleader then and there by his attorneys duly excepted.” McDonald brings the case to this court.