RULE 59. NEW TRIALS-AMENDMENT OF JUDGMENTS

Obsolete Date: 3/1/1998

(a) New Trial-Defined. A new trial is a re-examination of an issue of fact in the same court, after a trial and decision by a jury or court or by a referee.

(b) Causes for New Trial. The former verdict or other decision may be vacated and a new trial granted on the application of a party aggrieved for any of the following causes materially affecting the substantial rights of the party:

1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;

2. Misconduct of the jury, and whenever any juror has been induced to assent to any general or special verdict or to a finding on any question submitted to the jurors by the court by a resort to the determination of chance, the misconduct may be proved by the affidavit of any one of the jurors;

3. Accident or surprise which ordinary prudence could not have guarded against;

4. Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial;

5. Excessive damages appearing to have been given under the influence of passion or prejudice, but when a new trial is asked for on this ground and it appears that the passion and prejudice affected only the amount of damages allowed and did not influence the findings of the jury on other issues in the case, the trial court, on hearing the motion, and the supreme court, on appeal, may order a reduction of the verdict in lieu of a new trial or order that a new trial be had unless the party in whose favor the verdict was given remits the excess of damages;

6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law;

7. Errors in law occurring at the trial and, when required, excepted to by the party making the application; or

8. If without fault or negligence on the part of the party aggrieved, such party is unable to obtain or secure a correct and complete transcript of the testimony and instructions given and proceedings had at the trial.

(c) Time for Motion for New Trial. A motion for a new trial must be made not later than the following time after notice of entry of judgment:

1. Upon the ground of newly discovered evidence, within 6 months; and

2. Upon any other ground, within 60 days, unless the court, for good cause shown, extends the time.

(d) Upon What Motion for New Trial Made. A motion for a new trial may be made upon the files, exhibits, and minutes of the court. Pertinent facts not a part of the minutes may be shown by affidavit. Either party may procure a complete or partial transcript of the proceedings for use upon the hearing of the motion.

(e) Notice of Intention Not Required. It is not necessary in any case for a person intending to make a motion for a new trial to serve a notice of intention to make the motion, but a notice of hearing of the motion must be given. See Rule 6(d).

(f) Memorandum of Decision on Motion for New Trial. With all orders granting or refusing a new trial, the judge shall file a written memorandum concisely stating the different grounds on which the ruling is based, and unless the insufficiency or unsatisfactory nature of the evidence is expressly stated in the memorandum as a reason for granting the new trial, it must be presumed, on appeal, that it was not on that ground.

(g) Verdict Vacated by Court. The verdict of a jury also may be vacated and a new trial granted by the court in which the action is pending on its own motion without the application of either of the parties, when there has been such plain disregard by the jury of the instructions of the court or of the evidence in the case as to satisfy the court that the verdict was rendered under a misapprehension of the instructions or under the influence of passion or prejudice.

(h) Upon Trial to the Court. In granting a new trial in an action tried without a jury the court, without vacating the judgment if one has been entered, may limit the trial to one or more issues or to the taking of additional testimony on one or more issues and shall confirm or amend the findings of fact and conclusions of law or make new findings and conclusions. If a judgment has been entered, the court may vacate it and enter a new judgment or may amend it to conform to the findings of fact and conclusions of law finally made by the court.

(i) On Initiative of Court. Not later than 10 days after notice of entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

(j) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment must be served not later than 10 days after notice of entry of the judgment.