From Casetext: Smarter Legal Research

Hart v. Elmore

Supreme Judicial Court of Maine. Knox
Sep 24, 1928
143 A. 176 (Me. 1928)

Opinion

Opinion September 24, 1928.

MOTION FOR NEW TRIAL. FORM OF SAME.

One who moves the Law Court that a verdict be set aside, on the ground that being against the evidence, the verdict is contrary to law, is required by statute to supplement his motion by a report of the whole evidence.

Where, as in the case at bar, the case is submitted on less than a report of the whole evidence, there is no authority to consider the motion.

On general motion for new trial by the defendant. An action on the case to recover rent of furniture. Cause of action between the parties was first tried by referees who heard it under a count for work done and materials furnished, which declaration was followed by a specification alleging rental of furniture. The referees declined to receive evidence of rental of furniture under a count for materials furnished, but rendered judgment for $40.00 for work and materials furnished, and their report was accepted. Plaintiff did not ask to amend his declaration by inserting additional counts, either before the referees or the Court but took judgment on the award then made. After judgment was paid by the defendant in the first suit, plaintiff brought another suit for rental of furniture setting forth the same contract as in the first suit.

The jury found for the plaintiff in the sum of $267.72 and the defendant filed a general motion for new trial. Motion overruled. Judgment on the verdict.

Oscar H. Emery, for plaintiff.

Edward K. Gould, for defendant.

SITTING: WILSON, C. J., DUNN, DEASY, BARNES, BASSETT, PATTANGALL, JJ.


The brief of counsel for the defendant discusses that the verdict, adverse to his client, is obviously wrong.

Discussion proceeds along the line that the issues in a former and the present action between the same parties are in a legal sense the same.

One who moves this Court that a verdict be set aside, on the ground that, being against evidence, the verdict is contrary to law, is required by statute to supplement his motion by a report of the whole evidence. R. S., Chap. 87, Sec. 57, as amended by 1925 Laws, Chap. 170.

The report of the evidence in this case contains a copy of the declaration in the writ, of the defendant's pleadings, and a transcript of the testimony. The former action, which was referred under a rule to referees, whose finding has been accepted, has mention in the testimony. The docket entries appear there also. But copies of the writ, the declaration, the plea, and the referee's report in that action, all which were admitted into the evidence at the jury trial of this action, are not in the report of the evidence.

In his brief statement, defendant sets up with particularity the already satisfied judgment, but the brief statement is not evidence.

On cross-examination plaintiff testified that she recovered a judgment against the defendant, and that the judgment had been satisfied. This avails nothing. The testimony does not reach to identity of issues.

Where, as here, the case is submitted on less than a report of the whole evidence, there is no authority to consider the motion. Rogers v. Kennebec, etc., Company, 38 Maine, 227; Bradbury v. Saco, etc., Company, 41 Maine, 155.

The mandate must be:

Motion overruled. Judgment on the verdict.


Summaries of

Hart v. Elmore

Supreme Judicial Court of Maine. Knox
Sep 24, 1928
143 A. 176 (Me. 1928)
Case details for

Hart v. Elmore

Case Details

Full title:ANNIE L. HART vs. A. V. ELMORE

Court:Supreme Judicial Court of Maine. Knox

Date published: Sep 24, 1928

Citations

143 A. 176 (Me. 1928)
143 A. 176