Candler v. Hammond

Nov 15, 1857

Reporters:
Before:: McDonald

By the Court. —

McDonald J.,

delivering the opinion.

The presiding Judge in the Court below put his refusal of the new trial on two grounds only, and those grounds had no reference to the merits of the application. The first ground was that an unsuccessful motion in arrest of judgment had been made in the cause; and the second ground was, that no motion for a new trial was made at the Term of the Court when the trial was had and no brief of evidence was then filed.

[1.] Whether a motion for a new trial can be made in the Courts in England, after an unsuccessful motion in arrest of judgment, is more a matter of practice than a legal rule. The practice is different in the different Courts. In the Court of excheqeur, a motion in arrest of judgment, was refused, because ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it was not made within the four first days of the Term, next after the trial of the cause, and because it was made after a rule nisi for a new trial had been disposed of. Lane and another vs. Crockett, 7. Price 566. In Kings Bench a motion in arrest of judgment may be made at any time before judgment entered up, and even after a rule for a new trial has been discharged. 1. Sellon’s Pract. 497. In common pleas, a motion in arrest of judgment may be made after a new trial has beon moved and refused. Ib. 482. This *497is the practice of these several Courts in regard to motions in arrest of judgment. The rule of practice is somewhat different in relation to motions for new trial. In the Court of Excheqeur, in the case already cited from Price, the Court said that the motion in arrest of judgment and for a new trial might have been submitted in the alternative. This remark cannot be considered as evidence of a settled practice in that Court, but it seems to me that it would be a judicious rule, calculated to promote the ends of justice.’ In Sellon’s practice of the Court of King’s Bench and common pleas, the remark is made that a motion in arrest of judgment may be made after a new trial has been moved for and refused, but not vice versa. Hence, according to that authority, a motion for a new trial cannot be made after a motion in arrest of judgment. In extraordinary cases, however, it has been held that a motion for a new trial will be entertained after a motion in arrest of judgment. Tidd’s Prac. 913.

[2.] Motions in arrest of judgment and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for new trial in England, are not made before the justices of assize who try the cause, but before the Court to which the record is returned, at the Term next after the trial. Judgment can be entered in the Court only to which the proceedings are returned, and that on notice to the opposite party. 3. Bl. Com. 386. Here, judgments must be entered in the Court where the cause was tried, and within four days after its adjournment and no notice to the opposite party is required.

The Superior Courts are vested with power to grant new trials in such manner and under such rules and regulations as they may establish, and according to law and the customs and usages of Courts. The Superior Courts have established but one rule in reference to the granting of new trials, and that simply requires, that on every application for a new trial, a brief of the testimony in the cause shall be filed by the party moving for such new trial, under the revision and approval of the Court. 61si common laxo rule. The mode of proceedings in the English Courts, for the trial of causes, *498their transmission of the record to another and a higher Court for final judgment, &c., are so dissimilar to ours, that we cannot look to them for authoritative precedents. Our Courts however, have adopted a rule of practice, which, as far as I know, prevails as a general rule, that when a party is dissatisfied with a final verdict in a cause, he must move a rule nisi at the Term of the Court at which the trial was had, calling on the opposite party to show cause at the next succeeding Term of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the Court, why a new trial should not be granted. This is the general rule. But cases may arise, and have arisen, in which it would be proper and just for the Court to grant the rule though the Term had passed at which the trial was had. This Court has recognized the power of the Court to grant a new trial, after the expiration of the Term, at which the cause was tried, in peculiar and extraordinary cases. Graddy vs. Hightower et al, 1. Kelly’s Rep. 253. Courts of equity will, sometimes, grant new trials in Courts of law, or do what is equivalent thereto.

Indeed, there was a time, when Courts of law would scarce - ly grant them, and the resort that a party aggrieved by any unjust and oppressive verdict, was principally to a Court of Chancery. Things have changed, and Courts of law have, for a great while, exercised liberally the power, of granting new trials, and, for that reason, Courts of Equity have been less disposed to interfere with verdicts rendered in common law Courts. In extraordinary cases therefore, where the cause is still under the power of the Court which tried it, we see no reason, that if the justice of the case may require a new trial, why it should not grant it. In this case, there is patent in the record a sufficient reason wherefore the defendant’s counsel may have abandoned the motion which they made for a new trial. They supposed that they had good ground for arresting the judgment of the Court, and their judgment in this respect was fortified by the presiding Judge, who granted the motion to arrest it. This Court reversed that judgment, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and when the case was remitted to the Court *499below, they renewed the motion for a new trial. Únder the special circumstances of this case, the Court ought to have heard the motion on its merits.

[3.] We think that the Court below misinterpreted the 61ct rule of Court by holding that a brief of the testimony must have been filed at the Term of the Court when the trial was had. The rule of Court is that the party applying for a new trial must file a brief of the evidence under the revision and approval of the Court. If the circumstances of the case authorize the hearing of the motion for a new trial, after the expiration of the Term at which the cause was tried, ii is quite sufficient, if the brief be then filed. In this cause a brief of the evidence was made out and agreed upon by the parties, and filed at the time of the application. We think that the rule of Court was substantially complied with and that the new trial ought not to have been refused for the second reason assigned in the judgment of the Court below.

[4.] We infer from the record that the presiding Judge did not consider the merits of the motion for a new trial. He passed no judgment thereon. We have looked into them and are of opinion that the rule ought to have been refused. It was too late for the defendant to object to the form of oath administered to the jury, after he had proceeded to trial without objection on that account. He was willing to risk the chances of a verdict in his favor, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍under the oath as administered, and it is now too late, after a verdict against him, to object.

[5.] In respect to the other ground, it appears that Joe Butler was manumitted in the State of New Jersey by a proceeding under the laws of that State. There is nothing on the face of the deed of manumission showing that it was a part of a proceeding originating in a purpose to violate a law of Georgia. There was, therefore, no ground of demurrer to it as evidence. It was a matter for the determination of the jury.

The members this Court are not agreed as to the right or *500power of the Court below to look beyond the grounds for a trial taken specially in the motion, so we forbear to pronounce any judgment on the merits, further than is indicated above.

Judgment reversed.