Opinion
Nos. 41263, 41264.
February 21, 1969.
Appeal and error — nonappealable order — order granting new trial for misconduct of juror.
Action in the Stearns County District Court for property damage and personal injuries allegedly sustained by plaintiff when the automobile which he was driving collided with one driven by defendant. The case was tried before Norman H. Nelson, Judge, and a jury, which returned a verdict for plaintiff for $500 after the court directed a verdict on the issue of liability. The court thereafter granted plaintiff's motion for a new trial on the issue of damages only, and defendant appealed from said order and from an order denying his motion to vacate said order. Upon motion of respondent, appeal dismissed.
John F. Fletcher, for appellant.
Frank G. Dehn, Howard I. Donohue, and Donohue Donohue, for respondent.
Heard before Knutson, C. J., and Murphy, Rogosheske, Sheran, and Peterson, JJ.
The trial court, in this personal injury action, directed a verdict against defendant-appellant on the issue of liability, but submitted the issue of plaintiff's damages to the jury. The jury returned a verdict for plaintiff in the amount of $500 although the asserted special damages, vigorously contested by the defendant, were approximately $4,300 and the uncontroverted medical testimony indicated that plaintiff had sustained a 10-percent permanent partial disability of his back.
The trial court granted plaintiff's motion for a new trial on the jury issue of damages. The order specified that the motion was granted on the ground of misconduct of a juror.
We hold that the order granting a new trial, from which this appeal has been taken, is not appealable as of right. Granting a new trial for jury misconduct is a discretionary order and not an order "based exclusively upon errors of law occurring at the trial," the prescribed condition for an appeal of right from an order granting a new trial. Rule 103.03(e), Rules of Civil Appellate Procedure. See, also, Koenigs v. Werner, 263 Minn. 80, 116 N.W.2d 73.
Defendant subsequently moved to vacate the order granting a new trial and to reinstate the verdict, and has additionally appealed from the order denying that motion. An order refusing to vacate a nonappealable order, which undertakes to accomplish indirectly what cannot be done directly, is likewise nonappealable. See, Smith v. Illinois Cent. R. Co. 244 Minn. 52, 68 N.W.2d 638.
Appeal dismissed.