| Colo. | Feb 15, 1875
Convenience often requires that the consideration of a motion for new trial should be deferred from the term at which the trial occurs to a succeeding term. The
The power to grant or deny such motion at a succeeding term, even before a different judge than the one who presided at the trial, has been recognized. Ott v. McHenry, 2 W. Va. 77; United States v. Harding, 1 Wall., Jr., 127. By what means, in the case last suggested, the occurrence of the trial shall be presented upon the determination of the motion, is not material to the present inquiry.
When the motion comes on at a subsequent term, before the judge who presided upon the trial, the same consideration must, it would seem, control as if the determination were had at the time of the trial.
If a bill of exceptions shall have been settled, embodying the evidence, reference may of course be had to this. In the absence of such bill of exceptions, it would seem to be proper to refer to the judge’s notes of the trial, or to those of counsel, or the judge may refer to his' own recollection merely.
In many cases the issue is altogether one of fact, no question of law being controverted, and no exception reserved either to the admission or exclusion of testimony, or to any point of the charge. In such case, manifestly, no bill of exceptions whatever can be settled or allowed in advance of the determination of the motion for a new trial. If, out of abundant caution and diligence, one is prepared, it is still not a bill of exceptions, nor in any way effectual, to authenticate the evidence. In such case the law affords no memorial by which the court may inform itself of what evidence was heard by the jury. Unless, therefore, the judge may refer to his notes, or to his memory of the evidence, as confessedly he may do, at the trial term, there is nothing by which he may advise himself as to whether the verdict ought or ought not to stand ; the result is, that the motion must, at every term subsequent to that of the trial, be overruled, as of course ; or in other words, that it shall not then
So much of the motion as goes to the instructions prayed by the appellant, and refused by the court below, depends upon different considerations.
It is every-day practice to assign as ground of a motion for new trial, errors alleged to have intervened in the admission and exclusion of testimony, the charge to the jury, and like matters. Due regard to the rights of litigants, requires that suggestions of this character should be entertained upon the determination of the motion, rather than that the
It has sometimes, indeed, been deemed requisite that, to give advantage of such errors in- the court of final resort, a motion for new trial should be interposed, assigning for cause the error complained of. Tolland v. Wellington, 26 Mo. 58; Hoersh v. The Bank, 10 id. 516.
These cases seem to proceed upon the idea that opportunity ought to be afforded to the court in which the trial occurs, to correct its own errors ; and failing to present such opportunity, the party complaining ought not to be heard. It is conceived that a different rule prevails with us.
At the common law, no method was provided, by which the opinion of the court expressed upon questions of law, during the trial, could be brought in review upon writ of error, or other subsequent occasion.
The statute of 13 Edward I, chap. 13, allowed the bill of exceptions for this purpose. This enactment, adopted with us by the act of October 11,1861 (R. S., ch. 16), gave the means of preserving a memorial of the errors committed upon the trial, and bringing them to the view of this court.
But even after this statute, it could not be assigned for error that the verdict was contrary to evidence. If the jury found upon insufficient evidence, and judgment was given thereon, no means were afforded by which relief could be obtained. And so is the law at this day in the courts of the United States.
The statute allowing an exception to the overruling of motions for new trial was, it is conceived, intended to meet this defect, and not to give an additional means of relief for errors intervening in the course of the trial, and for which a sufficient remedy was before provided. Hill v. Ward, 2 Gilm. 293; Sullivan v. Dollins, 13 Ill. 88; Howe v. Tims, 16 Mo. 431" court="Mo." date_filed="1852-07-15" href="https://app.midpage.ai/document/how-v-sims-7998873?utm_source=webapp" opinion_id="7998873">16 Mo. 431; Dozier v. Jernean, 30 id. 220; Devlin v. Clark, 31 id. 22.
Therefore, to entitle the defeated party to a review in this court, of errors committed upon the trial, an exception must be reserved at the time, and brought into the record by bill
So far as the revisory power of this court is concerned, the only question presented to the court below, upon the motion for new trial, was the sufficiency of the evidence to maintain the verdict. While that court might, in its discretion, have gone beyond this, it was not required to do so ; nor are we permitted to entertain any other question.
Now, upon this question, the instructions which were prayed by the appellants, and refused by the district court, in no manner came into view, on the hearing of the motion for new trial, and are not to be considered here.
As to these, therefore, the motion will be sustained.
It was suggested upon the argument of this motion, that certain exceptions to the admission and exclusion of evidence were set forth in this bill of exceptions. If the bill does contain such exceptions, they are improperly there, and might be made the subject of further motion. Inasmuch, however, as counsel for the appellant has denied the existence of such exceptions, and distinctly disclaimed all reliance thereon, it may be proper to say, in order to avoid further delay, that all such exceptions, if any, will be disregarded.
Motion allowed in part.