Merten v. DeZurik

Per Curiam. The trial court, in this personal injury action, directed a verdict against defendant-appellant on the issue of liability, but submitted the issue of plaintiff’s damages to the jury. The jury returned a verdict for plaintiff in the amount of $500 although the asserted special damages, vigorously contested by the defendant, were approximately $4,300 and the uncontroverted medical testimony indicated that plaintiff had sustained a 10-percent permanent partial disability of his back. The trial court granted plaintiff’s motion for a new trial on the jury *540 issue of .damages. The order specified that the motion was granted on the ground of misconduct of a juror. We hold that the order granting a new trial, from which this appeal has been taken, is not appealable as of right. 1 Granting a new trial for jury misconduct is a discretionary order and not an order “based exclusively upon errors of law occurring at the trial,” the prescribed condition for an appeal of right from an order granting a new trial. Rule 103.03(e), Rules of Civil Appellate Procedure. See, also, Koenigs v. Werner, 263 Minn. 80 , 116 N. W. (2d) 73 . Appeal dismissed. Defendant subsequently moved to vacate the order granting a new trial and to reinstate the verdict, and has additionally appealed from the order denying that motion. An order refusing to vacate a nonappealable order, which undertakes to accomplish indirectly what cannot be done directly, is likewise nonappealable. See, Smith v. Illinois Cent. R. Co. 244 Minn. 52 , 68 N. W. (2d) 638 .