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1988

Rosie Leon v. Susan Phillips : Brief of AppellantUtah Court of Appeals

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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Jack C. Helgesen; Helgesen and Waterfall.Robert C. Gilchrist; Richards, Brandt, Miller and Nelson.

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Recommended CitationBrief of Appellant, Leon v. Phillips, No. 880335 (Utah Court of Appeals, 1988).https://digitalcommons.law.byu.edu/byu_ca1/1115

UTAH COURT OF APPEALS BRIEF

JTAH DOCUMENT K F U 50 A10

iQOCKET NO.

IN THE SUPREME COURT OF THE STATE OF UTAH

ROSIE LEON,

Appellant,

vs.

SUSAN PHILLIPS,

Respondent.

Priority classification No. 14b

Civil No. 870226

R8-C335 BRIEF OF THE APPELLANT

Appeal from the Second Judicial District Court Davis County, Judge Douglas Cornaby

Robert G. Gilchrist RICHARDS, BRANDT, MILLER & NELSON P.O. Box 2465 Salt Lake City, Utah 84110 (801) 531-1777

Jack C. Helgesen HELGESEN & WATERFALL 4768 Harrison Boulevard Ogden, Utah 84403 (801) 479-4777

IN THE SUPREME COURT OF THE STATE OF UTAH

ROSIE LEON,

Appellant,

vs.

SUSAN PHILLIPS,

Respondent

Priority Classification No. 14b

Civil NO. 870226

BRIEF OF THE APPELLANT

Appeal from the Second Judicial District Court Davis County, Judge Douglas Cornaby

Robert G. Gilchrist RICHARDS, BRANDT, MILLER & NELSON P.O. Box 2465 Salt Lake City, Utah 84110 (801) 531-1777

Jack C. Helgesen HELGESEN & WATERFALL 4768 Harrison Boulevard Ogden, Utah 84403 (801) 479-4777

TABLE OF CONTENTS

PAGE

AUTHORITY 2

NATURE OF PROCEEDINGS 2

STATEMENT OF ISSUES FOR REVIEW 2

DETERMINATIVE CONSTITUTIONAL PROVISIONS, 3

STATUES AND ORDINANCE

STATEMENT OF THE CASE 3

SUMMARY OF ARGUMENT 5

ARGUMENT 5 POINT ONE: 5 THE TESTIMONY FOR WHICH PLAINTIFF SOUGHT THE CONTINUANCE WAS RELEVANT TO THE ISSUE OF LIABILITY

POINT TWO: 6 THE COURT'S DENIAL OF A CONTINUANCE WAS INCONSISTENT WITH SUBSTANTIAL JUSTICE FOR THE PLAINTIFF

CONCLUSION 9

ADDENDUM

TABLE OF AUTHORITIES

PAGE

Bane v. Cox, 8 88 P. 1083, at PP. 185, 186

Rowley v. Graven Bros and Co., 8 491 P.2d 1209 (Utah 1971)

Slavenburg v. Bautts, 6 561 P.2d 423 (Kansas 1977)

STATUTES CITED

Utah Code Annotated, Section 78-2-2(3)(i) 3

IN THE SUPREME COURT OF THE STATE OF UTAH

ROSIE LEON, :

Appellant, : Priority Classification No. 14b

vs.

SUSAN PHILLIPS, : Civil No. 870226

Respondent.

BRIEF OF THE APPELLANT

Appeal from the Second Judicial District Court Davis County, Judge Douglas Cornaby

I. AUTHORITY

This appeal was brought under the authority of Utah

Code Ann. Section 78-2-2(3)(1).

II. NATURE OF PROCEEDING

This appeal is from a final judgment and denial of a

motion for new trial in of the District Court of Davis County,

State of Utah.

III. STATEMENT OF ISSUES FOR REVIEW

A, Did the trial court abuse its discretion in

refusing to grant the Plaintiff a one and one-half hour con­

tinuance to secure her next witness?

B. Was the trial court's refusal to grant the con­

tinuance prejudicial error?

IV. DETERMINATIVE CONSTITUTIONAL PROVISIONS, STATUTES AND ORDINANCE

Rule 40, Utah Rules of Civil Procedure

Rule ol, Utah Rules of Civil Procedure

V. STATEMENT OF THE CASE

A. Nature of the case.

The case arose when the Plaintiff claimed to have been

injured by the Defendants negligent driving.

The case was filed in the Second District Court in

Davis County, and proceeded to a jury verdict for the Defendant.

The Plaintiff claims an abuse of the trial count's

discretion in denying a continuance to call a witness and alleges

error in the denial of a motion for new trial based on the denial

of continuance.

B. Course of Proceedings and relevant dates.

Plaintiff filed her complaint on March 19, 1984. A

three day trial began on February 5, 1987.

C. Relevant Facts.

Plaintiff alleged that she was injured on September 3,

1983 when a truck driven by the Defendant struck the side of a

motor home as the Plaintiff was climbing into the motor home in

the parking lot of an Albertson's Super Market in Layton, Utah.

A jury trial commenced in the case on February 5, 1987

and continued for three days.

3

Three independent witnesses testified that the impact

occurred and that they had given the licence number of the truck

which hit the motor home to a policeman. The officer also

testified that the license number given him by the witnesses

matched the plates on the Defendant's truck, and that the

Defendant admitted to him that she was present in the truck at

the alleged time and place.

The Defendant at trial admitted to being in the parking

lot and to driving past the motor home, but claimed that she did

not strike it with her truck.

On the second day of trial the Plaintiff allowed Dr.

Nord, Defendant's principal medical witness, to testify out-of-

turn during the course of the Plaintiff's case. The last morning

of trial, Plaintiff's counsel completed the questioning of a

witness approximately 10:30 a.m. and then informed the court that

Dr. Tedrow, another witness called by the Defendant, was in the

courtroom and that counsel had agreed that Dr. Tedrow cculd

testify that morning. Defendant's counsel then informed the

court that he did not wish to call Dr. Tedrow at that time. The

court then requested Plaintiff to proceed with Plaintiff't> case.

Plaintiff's counsel informed the court that, because of his

agreement to let Dr. Tedrow testify out of turn that morning,

Plaintiff had not scheduled her next witness, a rehabilitation

expert, until after the noon recess.

The court then ordered Plaintiff to either rest or to

immediately call Plaintiff's next witness. Plaintiff moved the

4

court for a one and one-half hour continuance to procure Plain­

tiff's next witness. The court then denied Plaintiff's motion

for continuance and again ordered the Plaintiff to either call a

witness or to rest. The Plaintiff then rested her case under

protest. The Defendant then called Dr. Tedrow to the stand.

After the noon recess, the case was submitted to the

jury and, after deliberating, the jury returned a verdict for the

Defendant. Judgment was entered in accordance with the verdict,

and the Plaintiff appeals from that judgment and from the denial

of a motion for new trial.

VI. SUMMARY OF ARGUMENT

The trial court abused its discretion by denying

Plaintiff's motion for continuance. The denial left the Plain­

tiff without an important witness whose testimony was relevant to

the issue of liability and was a denial of Plaintiff's substan­

tial rights to justice.

VII. ARGUMENT

POINT ONE: THE TESTIMONY FOR WHICH PLAINTIFF SOUGHT THE CON

TINUANCE WAS RELEVANT TO THE ISSUE OF LIABILITY.

Alan Heal, the rehabilitation expert Plaintiff sought

to call as the next witness, would have testified concerning

Plaintiff's vocational impairment from her injuries. (See

proffer of evidence, Record at P 3.) If believed, such testimony

would have tended to make plaintiff's claim of injury more

credible.

5

The Plaintiff alleged that the Defendants truck struck

Plaintiff's motor home injuring the Plaintiff. The Defendant

claimed no other theory of defense. The jury's verdict that the

Defendant was not negligent, therefore, was a finding that the

collision did not occur.

Mr. Heal?s testimony would have supported Plaintiff's

contention that she was injured. Any testimony tending to make

Plaintiff's claim of injury more credible would also tend to

support the alleged collision.

POINT TWO: THE COURT'S DENIAL OF A CONTINUANCE WAS INCONSIS­TENT WITH SUBSTANTIAL JUSTICE FOR THE PLAINTIFF.

A similar case was decided by the Kansas Supreme Court

in Slavenburg v. Bautts, 561 P.2d 423 (Kansas 1977).

In Slavenburg, the Defendant was denied a contmuaiiCe

to call a iredical witness.

The case arose out of an automobile accident in Kansas.

The fact of the accident was not contested at trial, but the

defendant denied that the Plaintiff had been injured and alleged

that any disability pre-dated the accident.

At the end of the second day of trial, tht Defendant

informed the court that he could not call his next witness unti.1

1:30 p.m. the following day. He explained to the court that the

Defendant had allowed witnesses to be called out of order to

accommodate the Plaintiff, and that the doctor could not come

earlier than 1:30 p.m. The court then ordered the defendant to

present evidence beginning at 9:00 a.m. the next morning.

6

When Defendant had no witnesses in court at 9:00 a.m.

the following morning, the court announced to the jury that the

defendant had rested its case. The defendant appealed from an

adverse verdict.

The Kansas Supreme Court quoted from an earlier case

the following pertinent reasoning:

It is the duty of litigants to exercise great diligence both in prosecuting and in defending actions in court, and, as there are usually many cases set for hearing at each term of the district courts, the orderly dispatch of the business and the protection of other litigants from expensive delays and accumulating costs make it the duty of the court strictly to require the parties to every action to be ready foi trial promptly at the time the case is set for hearing or to prove that in the exercise of due diligence they have been unable to do so. So great is the necessity for the prompt dispatch of court business that the statute authorizes courts to and they generally do impose upon the unfortunate litigant who, even through no fault of his own, is unprepared to proceed at the time set all the costs of the necessary delay. This is usually sufficient to insure the making of every reasonable effort to be ready at the time appointed, unless vexation and delay to be the real object of the litigation or unless some real or fancied advantage may accrue to one party by a course of procrastination. In such cases of designed obstruction or in the case of gross or reckless infection, if the fault be on the part of the plaintiff, it may become the duty of the court to dismiss his action; if the defendant be at fault he may be penalized by proceeding with the trial notwithstanding his unieadmess.

"The incidents of life, however, refuse to conform themselves to the plans of any man or to march in regular procession on the order of any court or earthly power. Even death steps in at the most unanticipated times to stay proceedings. It should be borne in mind that mere order and regularity of proceeding are not the purpose for which courts exist and are held, but are only aids to the grand purpose of dispensing justice, and should not be carried to the extreme and become the cause of injustice. xExtreme justice is injustice.'"

7

Bane v. Cox, 88 P. 1083, at PP. 185, 186

The court then noted further that:

The power to grant a recess is inherent within the trial court's power to control the orderly movement of cases within sound judicial discretion...This includes the right to deny or grant a recess due to the absence of a witness. Exercise of this discretion, however, demands consideration of many factors. In ruling on a motion to recess because a witness is unavailable the court must consider and balance factors including counsel's diligence and effort to gain attendance of the witness, the reason the witness is not present, the nature of the witness's expected testimony, whether the testimony is critical evidence or merely cumulative, the amount of the delay expected, the effect of the delay on the docket of the court, and the overall injustice which might result if the delay were denied.

Having objectively considered the foregoing balancing factors, we believe a new trial should be granted.

Slavenburg at P. 428

Rule 61 of the Utah Rules of Civil Procedure requires

that ruling and judgment not be disturbed unless it appearb that

the ruling appears to be "inconsistent with substantial justices"

and must effect the ''substantial rights of the parties."

In Rowley v. Graven Eros and Co., 491 P.2d 1209 (Utah

1971), this court set fortr. the following test:

"The test to be applied is: Was there error or ir­regularity such that there is a reasonable likelihood to believe that in its absence there would have been a result more favorable to (the appellant)?

The Appellant, of course, cannot know or prove the

effect of the omitted testimony on the outcome of the trial.

8

The Plaintiff wishes the court to know that she cannot

afford a transcript of the complete trial. While she knows that

a transcript would be very helpful to the court in surveying the

whole evidence, she respectfully asks the court to consider the

undisputed evidence set forth in her statement of the facts.

She firmly believes that justice and fairness require a

new trial with a full and fair opportunity to call the witnesses

of her choosing.

VIII. CONCLUSION

The denial of a opportunity to call a important witness

was a denial of Plaintiff's substantial rights.

The trial court's denial of Plaintiff's motion for a

new trial shculd be reversed.

RESPECTFULLY SUBMITTED this day of April, 1938.

HELGESEN & WATERFALL

JACK C. HELGESEN Attorney for Appellant

9

CERTIFICATE OF MAILING

I hereby certify that I mailed a true and correct copy

of the foregoing Brief of Appellant to Robert G. Gilchrist,

RICHARDS, BRANDT, MILLER & NELSON, P.O. Box 2465, Salt Lake City,

Utah 84110, postage prepaid, this day of April, 1988.

Secretary

10

ADDENDUM

Judgment dated March 3, 1987

Order dated March 2, 1987

Order dated May 22, 1987

Notice of Appeal dated June 18, 1987

Rule 40, Utah Rules of Civil Procedure

Rule 61, Utah Rules of Civil Procedure

ROBERT G. GILCHRIST RICHARDS, BRANDT, MILLER & NELSON Attorneys for Defendant CSB Tower, Suite 700 50 South Main Street P.O. Box 2465 Salt Lake City, Utah 84110 Telephone: (801) 531-1777

FV.UNrCI i s o m e r

1937 MAR -ft AH 9 0 !

2NL LLTrJ i f CCURT

By r — ~ A £ L , Lu.; J i i l U f r\

IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT

IN AND FOR DAVIS COUNTY, STATE OF UTAH

ROSIE M. LEON#

Plaintiff,

vs.

SUSAN PHILLIPS,

Defendant*

JUDGMENT

Civil No.: 35305

This action came on for jury trial before the court

and jury, with the Honorable Douglas L. Cornaby, presiding,

and the issues having been duly presented and tried, and the

jury having answered the special verdict form, and having found

that the defendant, Susan Phillips was not negligent, and

therefore that there was no cause of action, that

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the

plaintiff take nothing, that the action be dismissed on the

merits, with each party to bear their own costs of this action.

FILMED

DATED this „•? day of /fsrrA 1987.

MAILING CERTIFICATE

I HEREBY CERTIFY that a true and correct copy of the foregoing instrument was nailed, first class, postage prepaid on this 44+*- day olJjtfJjtfUJtAtJ^ 1987, to the following counsel of record: (J

Jack C. Helgesen HELGESEN & WATERFALL 2650 Washington Blvd, Suite 102 Ogden, Utah 84401

LEON10/RGG JW2117

timo IJJ/AldlX

- 2 -

FILED IK CLERK'S 0FF1CF DAVIS COJ.'ii Y.UTAH

IS87HAR-4 AH a 0 !

nCHAR G »V.r!il!I.CLEPK 2 K : C::;F.ILf HURT

DY . —-£

ROBERT G. GILCHRIST 'JLMJ. : i-:.-;i\ RICHARDS, BRANDT, MILLER & NELSON Attorneys for Defendant CSB Tower, Suite 700 50 South Main Street P.O. Box 2465 Salt Lake City, Utah 84110 Telephone: (801) 531-1777

IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT

IN AND FOR DAVIS COUNTY, STATE OF UTAH

ROSIE M. LEON,

Plaintiff,

vs.

SUSAN PHILLIPS,

Defendant.

ORDER

Civil No.: 35305

The plaintiff's motion for a judgment not

withstanding the verdict, having been orally presented to the

court, on February 9, 1987, with the plaintiff being present

and represented by her counsel of record Jack C. Helgesen,

and the defendant being present and being represented by her

counsel of record Robert G. Gilchrist, and the court having

heard argument, and reviewed the matter, that

IT IS HEREBY ORDERED that plaintiff's motion is

denied.

FILMED

DATED this ^ . day of y ^ „ / 1987,

BY/THE COURT:

fORABLB' DOUGDHh-L. CORNABY District Court Judge /

MAILING CERTIFICATE

I HEREBY CERTIFY that a true and correct copy of the foregoing instrument was mailed, first class, postage prepaid on this £0*^ day of ^^MSULOJUU 1987, to the following counsel of record:

Jack C. Helgesen 2650 Washington Blvd., Suite 102 Ogden, Utah 84401

LEON11/RGG JW2117

'firtUJU LdaJuW

2 -

«AY 26 AM 10 02

2 « B D J 5 I n , C f CCURT

DY v4v ROBERT G. GILCHRIST C! rulVur7h " RICHARDS, BRANDT, MILLER & NELSON Attorneys for Defendant CSB Tower, Suite 700 50 South Main Street P.O. Box 2465 Salt Lake City, Utah 84110 Telephone: (801) 531-1777

IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT

IN AND FOR DAVIS COUNTY, STATE OF UTAH

ROSIE LEON,

Plaintiff,

vs.

SUSAN PHILLIPS,

Defendant.

ORDER

Civil No.: 35305

The plaintiff's motion for a new trial having been

filed with the court, and defendant having responded with a

brief, and the court having reviewed the matter pursuant to

Rule 2.8, that pursuant to the grounds stated in the court's

ruling on motion for new trial dated May 6, 1987,

IT IS HEREBY ORDERED that the plaintiff's motion for

a new trial is denied.

DATED this j?^— day of ^ 1987.

MAILING CERTIFICATE

I HEREBY CERTIFY that a true and correct copy of the foregoing instrument was mailed, first class, postage prepaid on this /J5**" day of <-Wu. , 1987, to the following counsel of record ofl/Vf

Jack Helgesen 2650 Washington Blvd., Suite 102 Ogden, Utah 84401

COMAJ^

LEON/RGG JW05157

2

JACK C. HELGESEN HELGESEN & WATERFALL, P.C. Attorney for Plaintiff 4768 Harrison Boulevard Ogden, Utah 84403 Telephone: (801) 479-4777

en Fn \S f! L" ' * ' - OfHC: n V , v V ? r • • 'Y.'JT/.H J r. f - v - ~

1981 JUH 22 PH * 11

BY. A^

DISTRICT COURT, DAVIS COUNTY

ROSIE M. LEON,

Plaintiff/Appellant,

vs.

SUSAN PHILLIPS,

Defendant/Respondent.

NOTICE OF APPEAL

Civil No. 35305

Notice is hereby given that ROSIE M. LEON,

Plaintiff/Appellant, hereby appeals to the Utah State

Supreme Court from the final judgment entered in this

action on the 22nd day of May, 1987.

DATED this \<ftr day of June, 1987.

HELGESEN & WATERFALL

*£L JACK7 C. HE#&ESEN Attorney for Plaintiff/Appellant

FILMED

CERTIFICATE OF MAILING

I hereby certify that I mailed a true and correct

copy of the foregoing NOTICE OF APPEAL, postage prepaid,

this IA day of June, 1987 to the following:

Robert G. Gilchrist RICHARDS, BRANDT, MILLER & NELSON P.O. Box 2465 Salt Lake City, Utah 84110

Secrel

2

COLLATERAL REFERENCES

Am. Jur. 2d. — 47 Am. Ju r 2d Jury vj$ 57, of Federal Ruu > i' Cw :. ." . au'.i, : 58; 75 Am. Jur . 2d Trial § 3 1 9 et seq. iritf it to order jury trial notwith.uand.-

C.J.S. — 50 C.J.S. Juries S§ 98 to 105, 88 party's failure to make seasonable demand: C J . S . Trial §§ 20, 203, 547 et seq. j u r y , 6 A.L.R. Fed. 217

A.L.R. — When does jeopardy attach in a K e y Numbers. — Jury «= 25; Trial «= : non-jury trial, 49 A.L.R.3d 1039. ^34 357 e t s e q

Discretion of district court under Rule 39<b\

Rule 40, Assignment of cases for trial; continuance. (a) Order and precedence. The district courts shall provide by rule fc:

the placing of actions upon the trial calendar (1) without request of the partir or (2) upon request of a party and notice to the other parties or (3) in sue other manner as the courts may deem expedient. Precedence shall be given: actions entitled thereto by statute.

(b) Postponement of the trial. Upon motion of a party, the court may:: its discretion, and upon such terms as may be just, including the payment c costs occasioned by such postponement, postpone a trial or proceeding upo-good cause shown. If the motion is made upon the ground of the absence evidence, such motion shall also set forth the materiality of the evidenc-expected to be obtained and shall show that due diligence has been used t procure it. The court may also require the party seeking the continuance t state, upon affidavit or under oath, the evidence he expects to obtain, and :* the adverse party thereupon admits that such evidence would be given, ar: that it may be considered as actually given on the trial, or offered and ex eluded as improper, the trial shall not be postponed upon that ground

(c) Taking testimony of witnesses present. If required by the adver> party, the court shall, as a condition to such postponement, proceed to haw the testimony of any witness present taken, in the same manner as if at th. trial; and the testimony so taken may be ret°d on the trial with the sanv effect, and subject to the same objections that may be made with respect to. deposition under the provisions of Rule 32(c)(1) and <2) [Rule 32 <c)(3/fA> an: <B>].

Compiler's Notes. -- Following the amend- to Rule 32<C>(3HA» and (B>. ment of Rule 32, effective June 1. 1972, the Subdivision (a* of this rule is similar to Ru-reference to Rule 32<c»< 1> and <2;, at. tho end of 40. F.R.C.P. Subdivision (c), should have been to Rule Cross-References. -- Amendment of pleac 32(d)(3)(A) and <B). Following the amendment inp« to conform to evidence, continuance upcr. of Rule 32, effective January 1, 1987, the refer- R u , e 1 5 ( b >

ence to Rule 32<d»(3KA> and <B) should now be

NOTES TO DECISIONS

ANALYSIS

Postponement.

—Absence of party. Discretion of court.

—Discretion of court. —Inability of counsel to attend trial.

Unavoidable absence. —New theory of case.

114

UTAH RULES OF CIVIL PROCEDURE Rule 61

Utah 2d 20, 395 P 2d 55 (1964\ Parker v lWfson, 525 P 2d 612 (Utah 1974) Dynapac, foe v Innovations, Inc , 550 P 2d 191 (Utah 1976), Olsen v Cummings, 565 P 2d 1123 (Utah 1977), Pitts v Pine Meadow Ranch, Inc , 589 P 2d 767 (Utah 1978), Peay v Peay, 607 P2d 841 (Utah 1980), Miller Pontiac, Inc v Osborne, 622 P 2d 800 (Utah 1981), Kohler v Garden City, 639 P 2d 162 (Utah 1981), St Pierre v Edmonds, 645 P 2d 615 (Utah 1982),

Kanzee v Kanzee, 668 P 2d 495 (Utah 1983) Pease v Industrial Comm'n, 694 P.2d 613 (Utah 1984), Wiese v Wiese, 699 P.2d 700 (Utah 1985), In re Estate of Chasel, 725 P 2d 1345 (Utah 1986), Katz v Pierce 732 P 2d 92 (Utah 1986), Myers v Garff, 655 F Supp 1021 (D Utah 1987), Wood v Weenig, 736 P 2d 1053 (Utah 1987) Fackrell v Fackrell, 740 P2d 1318 (Utah 1987), Tripp v Vaughn, 71 Utah Adv Rep 40 (Ct App 1987)

COLLATERAL REFERENCES

Am. Jur. 2d. — 46 Am Jur 2d Judgments H 200, 671 et seq

C.J.S. — 49 C J S Judgments §§ 228 et seq , 237

A.L.R. — Relief from judicial error by mo­tion under FRCP Rule 60(b)(1), 1 A L R Fed 771

Propriety of conditions imposed in granting relief from judgment under Rule of Civil Proce­dure 60(b), 3 A L R Fed 956

Construction of Rule 60(a) of Federal Rule^ of Civil Procedure authorizing correction of clerical mistakes and judgments, orders or ether parts of the records and errors therein arising from oversight or omission 13 A L R Fed 794

Construction and application of Rule 60(b)(5) of Federal Rules of Civil Procedure authorizing

relief from final judgment where its prospec­tive application is inequitable, 14 A L R Fed 309

Independent actions to obtain relief from judgment, order, or proceeding under Rule 60(b) of the Federal Rules of Cml Procedure, 53 A L R Fed 558

Lack of jurisdiction, or jurisdictional error, as rendering federal district court judgment "void" for purposes of relief under Rule 60(b)(4) of Federal Rules of Civil Procedure, 59 A L R Fed 831

Effect of filing of notice of appeal on motion to vacate judgment under Rule 60(b) of Federal Rules of Civil Procedure, 62 A L R Fed 14S

Key Numbers. — Judgment •= 294 et seq , 306, 307

Rule 61. Harmless error. No error in either the admission or the exclusion of evidence, and no error

or defect in any ruling or order or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or otherwise disturb­ing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties

Compiler's Notes. — This rule is similar to Rule 61, F R C P

NOTES TO DECISIONS

ANALYSIS

Admission of evidence Amendment of pleadings Burden of showing error Exclusion of evidence Instructions Judgment presumed valid Judicial notice Liability for costs Notice of appeal

201