Buckle v. McConaghy , 12 Idaho 733 ( 1906 )

AILSHIE, J.

This case has been here once before on appeal (83 Pac. 525) and was reversed on the grounds that a new trial had been granted prior to the settlement and allotvanee of the statement that was used on such motion. After the remittitur went down the trial judge took up the motion for a new trial and granted the same, and the plaintiff has again appealed from the order. As will be seen from an examination of the former opinion of this court, the respective counsel had entered into a stipulation prior to settlement of the statement, whereby they each waived notice of the time and place of submission of motion for new trial and also the right to make an argument on such motion. After the case was reversed and remanded the trial court took up the motion for a new trial and considered and passed upon it without causing any further notice to be given to plaintiff’s attorney. Appellant complains of this action, and insists that he should have had notice, and in support thereof cites Peter v. Kalez, 11 Idaho, 553, 83 Pac. 526, where this court said: “The adverse party is entitled to notice of time and place of the hearing on a motion for a new trial and to be present at the hearing and present his side of the ease.” This latter opinion states the rule of practice as established in this state, and, but for the stipulation entered into by counsel .in the ease at bar, he would have been entitled to the statutory notice and an opportunity to be heard on the motion. The stipulation, however, was still in force, and so long as it remained in force and effect the trial court had a right to treat it as a waiver on the part of plaintiff’s counsel of the right to notice and a hearing thereon. Had plaintiff desired to be heard on the motion when it came up the second time after the case had been reversed on appeal, he might have given notice to the adverse party of his intention to avoid that stipulation and have filed proof thereof with the clerk of the court, and he would have thereafter undoubtedly been entitled to notice as though no stipulation had been entered into..

The motion for a new trial in this case was made on assignments of fifty-five errors as having been committed in the admission and rejection of evidence, and giving and refusing instructions to the jury, and on four specifications of insufficiency of the evidence to support the verdict and judgment. The court granted the motion and ordered a new trial without designating upon what grounds he made the order. In such ease it will be presumed as a matter of course that it was made on some one or all of the grounds specified in the motion. (Powell v. Springston Lumber Co., ante, p. 723, 88 Pac. 97.) Since this is an appeal from the order granting the motion, it is only necessary for us to ascertain whether or not the order can be sustained on any ground named in the motion and assignments and specifications of errors. It would be otherwise if this were an appeal from an order denying the motion. In that event it would become necessary for us to examine all the assignments and determine whether there was merit in any of them. We have examined the evidence in this case and are satisfied that the action of the trial court must be affirmed. This was an action by a husband to recover damages from the defendant for the alienation of his wife’s affections. The jury returned a verdict of $8,000, and judgment was entered in accordance therewith. Many facts and circumstances shown by plaintiff were admitted by defendant, but in explanation thereof he, on the contrary, proved that he had in the meanwhile married plaintiff’s daughter, and that his frequent visits to plaintiff’s home were in fact made for the purpose of seeing the daughter instead of her mother, and that the result of his frequency at the Buckle home was his marriage to their daughter. At any rate, it is conceded that the defendant is plaintiff’s son in law, and the latter is charged with alienating his mother in law’s affections. The plaintiff established the fact, however, that after defendant’s visits became the usual order of things, his wife grew cold and cruel to him, and that it finally became impossible for him to live with her, and that he later obtained a divorce on the grounds of extreme cruelty. A further recital of the evidence here can serve no useful purpose. It is sufficient to say that there is a substantial conflict, and the rule is, that where the evidence presents a substantial conflict, and the trial court, who saw and heard the witnesses and saw and heard all that was done and said in the case, has granted a new trial, his order will not be disturbed on appeal. (Jones v. Campbell, 11 Idaho, 353, 84 Pac. 510; Jacksha v. Gilbert, 4 Idaho, 738, 44 Pac. 555; Brossard v. Morgan, 6 Idaho, 479, 56 Pac. 162.) Likewise, where there is a substantial conflict, and the trial court has denied the motion for a new trial, his order will not be disturbed. The order granting a new trial must be affirmed, and it is so ordered. Costs are awarded to respondent.

Stockslager, C. J., and Sullivan, J., concur.