Opinion
May 25, 1948. —
July 1, 1948.
APPEAL from an order of the municipal court of Outagamie county: OSCAR J. SCHMIEGE, Judge. Reversed.
For the appellants there was a brief by Benton, Bosser, Becker, Parnell Fulton of Appleton, and oral argument by A. W. Parnell.
The cause was submitted for the respondent on the brief of Allan C. Cain of Kaukauna.
Action brought by Ernest Buetow against Theodore Hietpas and his automobile liability insurer and the defendant Richard Grissman to recover from defendants damages for personal injury, medical expenses, loss of earnings, etc., sustained by plaintiff as a result of a collision between automobiles negligently operated by Hietpas and Grissman. In a special verdict on the trial the jury found Hietpas and Grissman causally negligent, and that as the result thereof plaintiff sustained damages in the total sum of $859.23, of which $200 were assessed by the jury for the personal injury sustained by him. On behalf of Hietpas and his insurer, and also on behalf of plaintiff, motions were noticed for certain changes in the verdict, including a motion by plaintiff to have the court change the jury's assessment of $200 for his personal injury to $3,000, or an amount which would be the least that a fair and unprejudiced jury should award for that item. After a hearing in relation to those motions, the court made the following order, —
"On motion of the plaintiff, the verdict is hereby set aside and a new trial ordered in the interest of justice. No terms to either party."
Hietpas and his insurer appealed from that order.
Appellants contend that the court's order granting a new trial "in the interest of justice" is clearly invalid and ineffective because the court wholly failed to "set forth in detail therein" "the reasons that prompted the court to make such order." In view of the court's failure in that respect there are clearly applicable herein the provisions in sec. 270.49 (2), Stats., that, —
"Every order granting a new trial shall specify the grounds therefor. . . . No order granting a new trial in the interest of justice shall be valid or effective unless the reasons that prompted the court to make such order are set forth in detail therein."
Thus by the provisions in the sentence last quoted the court is expressly required to specify in every order granting a new trial "in the interest of justice" "the reasons that prompted the court to make such order." That provision is clearly mandatory, and unless the reasons thus required are set forth in detail in the order, there is applicable thereto the unambiguous provision that "no order granting a new trial in the interest of justice shall be valid or effective." Consequently the order under review is not valid or effective and therefore it must be reversed and the cause remanded with directions to enter judgment upon the verdict for plaintiff's recovery from defendants of the damages assessed by the jury; and for contribution between Grissman and Hietpas and his insurer.
By the Court. — Order reversed, and cause remanded for further proceedings as stated in the opinion.
MARTIN, J., took no part.