18 Ala. 494 | Ala. | 1850
Edwards, in an action of tresspass to e¡( armis for an assault and battery, recovered a verdict and judgment against Lewis for seven hundred dollars, besides the costs. From this judgment an execution was issued against Lewis, which was levied upon some of his property. He thereupon presented bis petition for a supersedeas, alleging that he had paid the full amount of the execution. The supersedeas was granted, and at the next term of the Circuit Court, an issue was made up between the parties, according to the practice in such cases, by which Lewis avered the payment, and Edwards traversed or denied it. The issue was found by the jury for Lewis and the court ordered full satisfaction to be entered. Edwards excepted to several of the opinions of the court, and, besides, he moved for a new trial, and it was “ordered by the court that a new trial be granted as to five hundred dollars, upon the payment of all the costs of the said suit that have accrued, by the first of September next.” This was at the March Term, 1849. This second judgment, by which satisfaction was ordered, Edwards brought here by writ of error, and insisted up
2. But, speaking for myself alone, I am inclined to think, that as the order granted the new trial to take effect upon the performance of an act in pais during vacation, the order was wholly ineffectual from the first, or at least, from the end of that term. From the language of the order, it cannot be infered that the court intended the order take effect, until the costs were paid. For this construction of the order, Sands v. McClellan, 6 Cow. 582, is an authority. The new trial, therefore, was granted upon the condition precedent that the defendant should pay the costs by the first day of September then next. It is easy to say that he could pay the costs in vacation, and that the order for a new trial should thereupon take effect, but the novelty of such an order, with such a practice as it would introduce, is sufficient to call for the enquiry whether it is regular or even valid, or of any effect whatever. The maxim, that where an estate is to arise upon a condition precedent, it cannot vest until the condition is performed, is so strongly adhered to, that when the condition is become impossible, no estate or interest shall grow thereon. — 2 Bac. Abr. by Bouv. 292, title, Condition. If performance is prevented, even by the act of God, the consequence must be the same. — Vanborne v. Dorrance, 2 Dall. 317; Monk v. Riggs, 19 J. R., 69; Taylor & Otis v. Bullen, 6 Cow. 624, and cases there cited.
The court did not intend that the judgment should be set aside or its force arrested, unless the costs should be paid within the time limited. If not paid within that time, an execution
3. The order granting this new trial was, as I think, erroneous in another respect. The new trial was granted after judgment, and it was granted only as to part of the matter of controversy. Upon this point I have looked at the case of Stephens v. Brodnax & Newton, 5 Ala. 258. I have nothing to say against what was decided there, but I must dissent from what was said. It was said that the court might, with the assent of the parties, direct a judgment to he entered as to part, and a new trial had as to other matters in controversy. If the court had said that the party asking the new trial might be required to stipulate on record to admit part of the demand, or part of the facts at the next trial, I could find no objection to it. But that is a very different thing from the practice of rendering several judgments
I do not question the right of the Circuit Courts to impose terms, when they grant continuances or new trials, but this must not be done so as to violate judicial policy in any respect, and more particularly that policy which aims to prevent unnecessary costs and litigation. If all the litigation that may grow out of the execution of process from one judgment in a suit, such as trials of the right of property, &c., is to be multiplied several times, according to the number of judgments that might be rendered under such a practice, this, I think, is an evil sufficient to deter us from sanctioning it. The practice in England was that motions for new trials were always made before judgment, and the judgment was never entered until the motion was disposed of. I believe the same practice prevails in Massachusetts, and, doubtless, it would be good here. Under and consistently with this practice, it was held in England, that, as a new trial was not matter of right, it might be restrained-to a single point.— Hutchinson v. Piper, 4 Taunt. 555. The like has frequently been held in Massachusetts. — Winn v. The Columbia Insurance Co., 12 Pick. 279 ; Williams v. Henshaw, ib. 378; Robins v. Townsend, 20 ib. 345. Under such a practice, it might be right to grant a new trial as to one item in controversy, or even as to part of the sum recovered by the verdict on an entire cause of action; but upon that practice, I apprehend that there could not be two or more distinct judgments in the same suit, but that the judgment would await the last verdict and then be rendered for the whole amount. Here, we have pursued a practice of granting new trials after judgment. The effect of this must not be overlooked. In the first place, it is perfectly clear, that if a new trial be granted generally, that sets aside the judgment, or if granted for part of the sum recovered by the verdict, the judgment is set aside to that extent at least, and here a new question growing out of a departure from the safe and well known common law practice arises. These questions are often extremely
Let the judgment be affirmed.
The practice of granting continuances and new trials as to part of a demand sued for, on condition of suffering judgment to be rendered for the residue, has prevailed to some extent in some parts of the State, and seems to have been countenanced by this court in the case of Stephens v. Brodnax & Newton, 5 Ala. 258, but I think it a departure from the well settled principles of law, and productive of much more injury than benefit. I need not cite authority to prove, that if a party brings his suit for part of his demand only, as if he sues for one item of an account, when the account consists of several, and recover judgment for this portion of his demand alone, he could not be permitted afterwards to sue for the other items of the same account, for the law will not tolerate the splitting up a demand into several distinct suits, thus increasing litigation ; and I cannot well see the difference between this and allowing,
I agree in the result of this cause, for the reason that the sueing out of the writ of error, before complying with the condition upon which a new trial was granted, amounted to a waiver of such new trial. — Hale v. Walker, 1'6 Ala. 26 ; Stephens v. Brodnax & Newton, 5 ib. 258. As this view is decisive of the case, it is unnecessary for me to say more; but lest my silence should be construed into an approval of what my brethren have said beyond this, I deem it proper to add, that in my opinion there is no necessity for departing from the practice of requiring parties, who admit a portion of a demand to be justly due, to
I deem the practice of granting new trials upon conditions to be performed after the court adjourns, as upon the payment of cost by a given day, also, too well established by the primary courts, as well as substantially sanctioned by this court, now to be disturbed. The difficulty, under which my brother Parsons labors, is removed by the fact, that in such cases, the cause necessarily stands over until the next term, so that the court may definitely determine whether or not the condition has been performed. — See Reese v. Billing, 9 Ala. 263; Stephens et al. v. Mansony, 4 ib. 317; Martin v. Chapman, 1 ib. 278.