Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Davis , 10 Ind. App. 342 ( 1894 )

Davis, C. J.

This was an action instituted by appellee against appellant, to recover damages alleged to have been sustained by appellee on account of negligence of appellant in allowing fire to escape from its right of way on to his premises.

The case was submitted to a jury for trial, and, on return of a special verdict, judgment was rendered for appellant.

Appellee then filed a motion for a new trial, and appellant thereupon moved the court to strike out the motion for a new trial, which was overruled, and the motion for a new trial sustained.

Appellant reserved proper exceptions, and, within the time granted, filed bills of exceptions. The case was then tried by the court, and resulted in finding and judgment in favor of appellee for ninety dollars.

It is contended, first, that the trial court erred in granting appellee’s motion for a new trial. The causes for which a new trial may be granted are specified by statute. Section 568, R. S. 1894.

The difference in the rule that prevails in an Appellate Court and the trial court, in relation to new trials, is correctly and tersely expressed by the Supreme Court, in Christy v. Holmes, 57 Ind. 314, as follows: "In the circuit court, it must clearly appear that substantial justice has been done by the verdict, or a new trial should be granted; in the Supreme Court, it must clearly appear that substantial justice has not been done, or the judgment should be affirmed.”

The granting of a new trial rests largely in the discretion of the nisi prius court, and will only be reviewed by an appellate court when the abuse of such discretion is shown. Hines v. Driver, 89 Ind. 339.

We have examined the record in this case in the light of the brief of counsel for appellant, and without discussion, suffice it to say, we are not prepared to adjudge that the trial court abused its discretion.

It is next insisted that the court erred in overruling appellant’s motion to strike out appellee’s motion for a new trial.

On the first trial of the cause it incidently appeared that the attorney for appellee was prosecuting the action under an agreement by the terms of which he was to receive one-half the proceeds of the litigation if successful, and was to pay one-half the costs, except fees of appellee’s witnesses, should he be defeated. At this stage of the proceedings appellant made a motion, based on said champertous agreement, to dismiss the action, but there was no ruling on this, motion, and neither was there any exception reserved to the nonaction of the court.

The basis of the motion to strike out the motion for a new trial is the champertous agreement referred to. The motion to dismiss the action was not afterwards in any manner renewed. The only question presented for our consideration in this connection is, whether the court erred in overruling the motion to- strike out the motion for a new trial.

The rule invalidating champertous agreements is still in force in this State, although much restricted. Scobey v. Ross, 13 Ind. 117. See, also, Quigley v. Thompson, 53 Ind. 317; Mart v. State, ex rel., 120 Ind. 83; Allen v. Frazee, 85 Ind.. 283; Stotsenburg, Admr., v. Marks, 79 Ind. 193; Board, etc., v. Jameson, 86 Ind. 154.

Filed March 6, 1894.

The general rule supported by the weight of authority seems, however, to be that the defense of champerty can only be set up when the champertous contract itself is sought to be enforced, and that the existence of a champertous agreement between the plaintiff and his attorney is no defense to the action against [the defendant. Am. & Eng. Ency. of Law, vol. 3, p. 86.

It is intimated in one case in this State, that the court may, on the grounds of public policy, dismiss the suit as soon as it clearly appears upon the trial, t.o the satisfaction of the court, that the action is being prosecuted under a champertous agreement. Greenman v. Cohee, 61 Ind. 201.

Whatever the rule may be as to who may take advantage of the invalidity of a champertous agreement, when the foundation of the action itself is not tainted with the vice, the question should be raised either by a plea or a motion to dismiss the action. The method here adopted is not known to the practice. Under the circumstances disclosed by the record in this case, there was no error in overruling the motion under consideration.

As to whether, if the question was properly presented, we should follow the obiter dictum in Greenman v. Cohee, supra, or the general rule supported by the authorities cited in Am. & Eng. Ency. of Law, supra, we do not determine.

Judgment affirmed.