Opinion
No. 27,905.
May 9, 1930.
Appeal from grant of new trial upon grounds of errors of law and insufficiency of evidence.
1. An order granting a motion for a new trial upon the grounds of error of law and insufficiency of evidence is not appealable unless the order or the memorandum of the court expressly states that it is based exclusively on errors of law.
When such order cannot be amended.
2. An order granting a new trial on such a motion cannot be amended by inserting therein the necessary statement upon motion made after the time to appeal has expired.
Denial of motion to vacate nonappealable order not appealable.
3. An order denying a motion to vacate a nonappealable order is not appealable.
Plaintiff appealed from orders of the district court for Hennepin county, Baker, J. of the twelfth judicial district acting for a judge of the fourth judicial district, granting defendant's motion for a new trial and denying plaintiff's motion to vacate this order. Appeal dismissed.
Tautges, Wilder McDonald, for appellant.
R. T. Boardman and J. F. Dulebohn, for respondent.
Action for personal injuries sustained by the plaintiff while a passenger of the defendant. There was a verdict for the plaintiff. The court granted the motion of the defendant for a new trial and later denied the plaintiff's motion to vacate the order granting the new trial. The plaintiff appeals from both orders.
1. Defendant's motion for a new trial was upon the grounds of insufficiency of the evidence and errors of law. An order granting a motion for a new trial, when there has not been a like order before because of insufficiency of evidence, after a first trial, made upon the grounds stated, is appealable only when granted upon errors of law and the fact is stated in the order or in the memorandum of the trial court. G. S. 1923 (2 Mason, 1927) § 9498(4); Thompson v. C. N.W. Ry. Co. 178 Minn. 232, 226 N.W. 700, and cases cited.
The court stated in its order that it was of the opinion that prejudicial error resulted from its ruling which prevented the defendant from laying a foundation for the admission in evidence of the complaint in a former action by the plaintiff against the defendant and another for the same injury. It is conceded that this was not a compliance with the statute. The appeal must be dismissed.
2. The order granting a new trial was dated on May 3, 1929, and written notice of it was served upon the plaintiff on May 7, 1929. An appeal from an order must be made within 30 days after such notice. G. S. 1923 (2 Mason, 1927) § 9497. On November 12, 1929, the plaintiff moved to amend the order of May 3, 1929, so as to show that it was based exclusively on errors of law occurring at the trial, and the motion was granted in general terms on December 14, 1929. On December 20, 1929, the plaintiff appealed from the order of May 3, 1929.
It is not uncommon to amend an order granting a new trial by inserting a statement that it was based exclusively upon the ground of errors of law. An order of this kind, though it might be appealable after amendment, is not appealable if the motion for the amendment is made after the lapse of the 30 days in which to appeal. Whether there might be an appeal if the motion were made within the 30 days and granted afterwards is not important here.
3. On July 1, 1929, the plaintiff moved to vacate the order of May 3, 1929. On October 22, 1929, the motion was denied. She appeals from this order. The order comes within the general rule that an order denying a motion to vacate a nonappealable order is not appealable. 1 Dunnell, Minn. Dig. (2 ed.) § 304; Thompson v. C. N.W. Ry. Co. 178 Minn. 232, 226 N.W. 700.
The order not being appealable the court is without jurisdiction. The parties argued the ground of error upon which the trial court granted a new trial. While we cannot decide the question, it may not be amiss to say, in view of a new trial, that the plaintiff may not deem it prudent to make the same objection upon the new trial.
Appeal dismissed.