Chambers v. Campbell, 15 Conn. 427

Chambers v. Campbell

15 Conn. 427 | Conn. | 1843

Waite, J.

Tn this case, a verdict having been rendered in the superior court in favour of the plaintiff in the original action, the defendants filed their motion for a new trial, which was allowed by the court; but the defendants neglected to bring their case before this court; and afterwards, at the August term of the superior court in 1842, final judgment was entered in favour of the plaintiff.

The defendants now bring their writ of error, for the purpose of having the question of law, stated in their motion for a new trial, reviewed. It is not claimed, that there is any error in the judgment below, unless it appears upon this motion. And the question is, whether the matters set forth in a motion for a new trial, can be reviewed upon a writ of error.

It is claimed, that the motion may be treated as a bill of exceptions. But the object and design of the two instruments are very different. That of the former is to enable the court, before final judgment, to correct any errors that may have occurred upon the trial; that of the latter to place upon record, certain matters, which would not otherwise appear, to be examined, after final judgment, upon a writ of error.

The application, in the former case, is generally addressed to the discretion of the court; and a new trial may be granted or denied, according to what, under all the circumstances, may be considered the requirements of justice. And when granted, it is sometimes done upon terms prescribed by the court. But upon a writ of error, no discretion can be exercised. The only question is, whether the proceedings have been according to law ; and the judgment must be affirmed or reversed accordingly.

*431Although, in our practice, the forms of the two instruments are, in many respects, similar, yet it is not so in England, There, the forms required in one case, are very different from those in the other. But this resemblance in form, in our practice, was not designed to change the character of either of the two instruments. Their offices here are as distinct as in the English practice.

Besides, to allow this motion to be treated as a bill of exceptions, would not only be a novelty in the history of judicial proceedings, but would, in effect, repeal a very salutary rule of this court, established in 1807, to regulate the proceedings of the superior court. 3 Day, 29, That rule provides, that bills of exceptions shall not thereafter be admitted, but motions for new trials allowed, in all cases, in their room. Now, if a motion fop a new trial may be treated as a suit, or as a bill of exceptions, at the election of the party filing it, the rule becomes entirely nugatory in its operation.

We are, therefore, satisfied, that the only error complained of, in this case, is one, which, if it be such, cannot be corrected in this manner ; and consequently, the judgment of the court below must be affirmed.

In this opinion the other Judges concurred, except Church, J., who gave no opinion, the town of which he is an inhabitant being interested.

Judgment affirmed.