1 Ga. 252 | Ga. | 1846
By the Court
Upon the trial of this cause in the court below, a decree was had in favor of the complainant. At the term when the decree was rendered, a motion was made by defendant’s solicitors, orally, for a rule nisi for a new trial. What was claimed by the mover of this rule as a brief of the testimony in the case, was presented to the judge. This brief was objected to by complainant’s counsel as imperfect; indeed, a protest against its completeness was formally made by them. There was, therefore, no brief of testimony, either agreed upon by the parties or approved by the court. No supersedeas was entered ; the judgment was entered, and execution having issued for costs, (the recovery being for land,) was paid. The
1st. Because there was no brief of the testimony approved by the court, or agreed upon by counsel, filed in the cause, at the time the rule nisi was moved.
2d. It is claimed that the court erred in granting a new trial without any record of the application for the rule nisi appearing on the minutes, without a supersedeas being entered in the cause, and after the entire record of it had. been made up ; and, farther, because the rule nisi for a new trial ivas granted in vacation — the plaintiffs in error contending that such a rule can alone be granted in term.
The law of new trials is well settled in England. After general verdict in King’s Bench, the practice is to move a rule for entering judgment in the cause ; upon the return of which rule, and within four days after verdict, judgment is entered. The motion for a new trial must be made within four days, exclusive, after the entry of the rule for judgment. It cannot be made, after the four days, even by consent of parties.— Tidd’s Prac. 3 Am. ed. 912; Doug. 171; 1 Chitty's Prac. 382-3, a; 5 Durn. and East. 436.
The practice in the Common Pleas does not vary a great deal from that in Banco Regis.— Tidd, 3 Am. ed. 912, 913.
The rule is granted upon motion, and the ground taken must he supported by the oath of the party applying for it. The granting of the rule operates as a supersedeas. — See Sellon, tit. New Trials. The Terms, in England, continue pretty much through the year, and both the granting and return of the rule, generally, is in term time.
Although the rule as to the right of a party to move for a new trial is as above stated, the court may on its own motion, in peculiar and extraordinary cases, grant a new trial,after the time thus limited has transpired. This power, however, is exercised with the utmost caution and reserve.— Tidd, 3 Am. ed. 912, 913; 2 Strange, 845, 995; 2 Burrow, 1189; Doug. 171; 1 East. 146; 11 East. 308.
Such being the practice in England, is it in any particular varied by our own Constitution and laws ? We think that so far as that practice is applicable to the somewhat different organization of our courts, it is not affected by our legislation, and that the common law as to new trials is, to that extent, of force in Georgia.
By the Constitution of Georgia, the Superior Courts are clothed with power “ to grant new trials on proper and legal grounds.” — Prin. Dig. 909. The legal grounds, referred to in this clause, must be construed to mean common law grounds, as the common law was in force in Georgia at the adoption of the Constitution. We might, therefore, say that the Constitution itself refers the superior courts to the common law as their guide in this respect.
To carry out this grant of power, the act of the Legislature, passed
Applying the common law upon this subiect to our own courts, we believe that in no case can a rule nisi, for a new trial be granted in Georgia, at the instance of a party, unless application be made at the term at which the judgment of the court is rendered ; and that such application must appear upon the minutes of that term. We do not deny to the judges the power of making such rule returnable in vacation, in cases when the application is duly made in term, and recorded, and when the record also shows that such rule is made so returnable in vacation. We deny the right of granting the rule after the record is made up. There must be somewhere an end to litigation. If a rule for a new trial nisi, may be granted one day after the term, at what time in after years does the power
The 57th section of the act of 1799, appears at first view to be in conflict with the 55th section, before recited, and to oppose the conclusions we have drawn from the last-named section. It is one among many instances, to be found on our statute book, of careless or hasty legislation. No construction that we can give it will make it harmonize completely with the previous section. Both sections are found in the same act. It is, according to approved rules of construction, necessary to give effect to both sections, if possible. We cannot believe that the legislature meant, in the 57th section, to repeal, or to render inoperative, the 55th section. The 57th section is in the following words : “ In any case which has arisen since the signing of the present Constitution, or which may hereafter arise, of a verdict of a special jury being given, contrary to evidence and the principles of justice and equity, it shall and may be lawful for tho judge presiding, to grant a new trial before another special jury, in the manner prescribed by this act. Provided, that twenty days’ notice be given, by the party applying for such new trial, to the adverse party of his intention, and the grounds of his application.” The remainder of the section is not material to this inquiry. The provisions of the section are limited to new trials on the verdict of special juries, and seem to be limited to new trials, growing out of the finding of the jury on the evidence adduced to them. It does not in its terms relate to new trials, which may be claimed upon alleged errors in the administration of the law. In such cases, it would seem by the proviso, that a party would be entitled to apply at any time for a new trial, upon giving twenty days’ notice to tho adverse party of his intention, and the grounds of his application. This inference can be drawn alone from the proviso; it cannot be drawn from the previous part of the section. So far from it, that a contrary conclusion must be drawn from the previous words of the section. In the crs.'s contemplated, it is made lawful for the judge presiding to grant a now trial in the manner prescribed by this act, that is to say, in the manner prescribed in the 55th section. The manner prescribed in the 55th section is, as we have endeavored to show, according to the common Jaw,