In re Estate of Velie

Full title: In re Estate of Annie F. Velie, Incompetent. Francis J. Coyle, Appellee…

Court: Appellate Court of Illinois, Second District

Date published: Apr 28, 1943

48 N.E.2d 431 (Ill. App. Ct. 1943)

48 N.E.2d 431

Opinion

Gen. No. 9,828.

Opinion filed April 28, 1943.

1. NEW TRIAL, § 4^_ — review of discretion of court. At common law motion for new trial was addressed to sound discretion of trial court, and its discretion on such motion was not subject of review.

_ See Callaghan's Illinois Digest, same topic and section number.

2. NEW TRIAL, § 4^fn_ — power and discretion of court. Matter of new trials addresses itself to sound discretion of trial court, and where no positive rule of law forbids, court of general jurisdiction is possessed of inherent power to grant new trial where in its opinion justice requires.

3. NEW TRIAL, § 4^fn_ — discretion as affected by provisions of Civil Practice Act. Notwithstanding provision of Civil Practice Act authorizing appeal from order granting new trial, trial courts are, generally speaking, clothed with discretion, as at common law, to be exercised in such manner as will best answer ends of justice when granting motions for new trial.

4. NEW TRIAL, § 4^fn_ — abuse of discretion in granting or denying. Action of trial court with respect to granting or denying motion for new trial will not be reversed except in case of clear abuse of discretion, which must affirmatively appear.

DOVE, J., dissents.

Appeal by defendants from the Circuit Court of Cook county; the Hon. AUGUST J. SCHEINEMAN, Judge, presiding. Heard in this court at the February term, 1943. Order affirmed. Opinion filed April 28, 1943.

KENWORTHY, HARPER, SOLLO GRAHAM, of Moline, for appellants; S.R. KENWORTHY and R.G. GRAHAM, both of Moline, of counsel.

FRANCIS J. COYLE, pro se; BELL, FARRAR SCOTT, of Rock Island, for appellee; BENJAMIN S. BELL and EARL L. SCOTT, both of Rock Island, of counsel.

MR. PRESIDING JUSTICE HUFFMAN delivered the opinion of the court.

This is an appeal from an order of the trial court granting a motion for new trial. Appellee was plaintiff below. The jury returned a verdict for defendants. The court granted plaintiff's motion for new trial, and defendants prosecute this appeal.

The trial court filed written remarks giving his reasons for granting the motion. They clearly indicate he was dissatisfied with the evidence, and that this was the reason he granted the motion for new trial.

At common law, a motion for new trial was addressed to the sound discretion of the trial court, and its discretion on such motion was not the subject of review. However, many States by statute, permit an appeal from an order granting a new trial. Such provision was incorporated in the present Civil Practice Act of this State. Some jurisdictions permit review of such order only where a question of law is involved, and not where the action of the court rests solely upon questions of fact.

Such motions have long been common to the practice. Their origin is of such extremely ancient date, that it has been referred to as being "concealed in the night of time." It is generally considered that the matter of new trials addresses itself to the sound discretion of the trial court, and where no positive rule of law forbids, a court of general jurisdiction is possessed of an inherent power to grant a new trial where in its opinion, justice requires. In this connection, it is to be remembered that the trial court has a tremendous advantage in its opportunity to observe witnesses as well as the general conduct of a trial, and this is particularly true with respect to cases to be determined upon questions of fact.

It has been said: "Notwithstanding the provision of the recently enacted Civil Practice Act authorizing an appeal from an order granting a new trial, the trial courts are, generally speaking, clothed with a discretion, as at common law, to be exercised in such manner as will best answer the ends of justice when granting motions for a new trial." Adamsen v. Magnelia, 280 Ill. App. 418, 422; Randall v. Randall, 281 Ill. App. 169, 174; Barthelman v. Braun, 278 Ill. App. 384, 388. It has also been said that such motions are addressed to the sound judgment of the trial court, and that its action thereon will not be reversed except in case of a clear abuse of such discretion, which must affirmatively appear. Couch v. Southern Ry. Co., 294 Ill. App. 490, 492; Josate v. Mack, 302 Ill. App. 246, 248; Ledferd v. Reardon, 303 Ill. App. 300, 307; Adamsen v. Magnelia, supra, at p. 422.

A discussion of the evidence in this opinion is not deemed pertinent as the case is to be retried.

The order of the trial court granting motion for new trial is affirmed.

Order affirmed.

DOVE, J., dissents.