¶1(concurring specially). In the case at bar the defendant moved for a neiv trial on the ground of insufficiency of the evidence to sustain the verdict. After the motion had been made, and fully submitted to, and pending consideration thereof by, the court, the defendant appealed from the judgment. The appeal was taken through an abundance of caution so as to avoid any question as to whether the action still remained pending within the rule announced by this court in Grove v. Morris, 31 N. D. 8, 151 N. W. 779; Higgins v. Rued, 30 N. D. 551, 153 N. W. 389; Garbush v. Firey, 33 N. D. *124154, 156 N. W. 537. Manifestly tbe defendant did not intend to waive the motion for a new trial. And I agree with my associates that the appeal from the judgment under the circumstances existing in this case did not devest the trial court of jurisdiction to determine the pending motion for a new trial. Whether a motion for a new trial can be made after an appeal from the judgment has been taken is a different question. That question is not involved in this case, and I express no opinion thereon.
42 ND 119
McCann v. Gilmore
Decided April 5, 1919
North Dakota Supreme Court · decided 1919-04-05
O. Burr, J. A motion for new trial is not directed at the judgment, hut at ■the verdict, or at the decision of fact; for a new trial is a re•examination of an issue of fact.
Reversed and remanded · Decided 1919-04-05