71 Wis. 595 | Wis. | 1888
Lead Opinion
The town of Saukville was indicted for not repairing a bridge, and was found guilty. A motion was made to set aside the verdict and for a new trial, which motion was denied, and the defendant town was sentenced to pay a fine of $250. The cause was then brought to this court on a writ of error, and the judgment of the circuit court was affirmed. On the return of the record to the circuit court the defendant made a motion, founded upon a petition and affidavits, for a new trial, which motion was granted. A common-law writ of certiorari was then issued from this court to review the order of the circuit court granting a new trial. A motion is now made to quash the writ because it was improvidently granted, and that motion is the matter to be considered. The rule is well settled in this court that the only question arising on the motion is
Had, then, the circuit court power or jurisdiction to grant a new trial in this cause? For the purposes of the case, jurisdiction may be defined to be the power to hear and determine the cause or controversy before the court, or the power to grant the motion for a new trial. See Wanzer v. Howland, 10 Wis. 16; Pollard v. Wegener, 13 Wis. 569; Arnold v. Booth, 14 Wis. 180; Hauser v. State, 33 Wis. 678. Sec. 4719, R. S., reads as follows: “ The circuit court may, at the term in which the trial of any indictment or information shall be had, or within one year thereafter, and in either case before or after judgment, on the petition or motion in writing of the defendant, grant a new trial for any cause for which, by law, a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms as the court may direct.” It appears that a proper motion was made within one year from the judgment, upon the grounds addressed to the discretion of the circuit court, and a new trial was undoubtedly granted under the special authority conferred by the above statute; and the question now is, Had the court power to grant it? We can only consider the question of the power or jurisdiction of the court in the matter, not whether it exercised that power wisely, or granted the motion on insufficient grounds, for the court may have erred, but error does not affect its jurisdiction.
This statute was probably borrowed from Massachusetts. See Pub. Stats, of Mass. 1882, ch. 114, sec. 128; Comm. v. Peck, 1 Met. 428; Comm. v. McElhaney, 111 Mass. 439;
Quite an elaborate argument is made on behalf of the relator to establish the position that the court ought not to have granted a new trial on the case presented. It may be that the court erred in its decision, but for the reasons before indicated we cannot consider that point. On this writ we do not review the decision for error, but merely the question whether the court had jurisdiction to make it. Upon that point we confess we are entirely clear that the 'court, in granting a new trial, did not exceed its jurisdiction, even though it may have erred in granting the trial upon the case presented. Hauser v. State, 33 Wis. 678; In re Semlar, 41 Wis. 517. It seems hardly necessary to add that the power of the court is rested exclusively upon the authority conferred by the statute, and not upon its general jurisdiction.
It follows from these views that the motion to quash the writ must be sustained.
Dissenting Opinion
The undersigned most respectfully hereby dissents from the decision of the motion in this case. The cause of The State v. The Town of Saukville had been tried before a jury on a plea of not guilty on its merits. The jury found the defendant guilty, and the court sentenced it to pay a fine of $250 and costs. In due time the defendant made a motion to set aside the verdict and to grant a new trial in the cause, which was overruled, and the defendant excepted. On writ of error to this court and bill of exceptions said judgment was affirmed, absolutely, and without any reservation. After the remittitur, the circuit court granted a new trial in the cause ostensibly on the ground that certain evidence which had been given and considered at the trial did not appear in the bill of exceptions in this 'court, and for other reasons. This was done, as claimed, by virtue of sec. 4719> R. S., which provides that the circuit court may, at the “ term in which the trial of any indictment or information shall be had, or within one year thereafter, grant a new trial for any cause for which, by law, a new trial may be granted, or when it shall appear to the court that justice has not been done.” The new trial was evidently granted under the power given by this last clause of the section, for the cause stated was not sufficient as the ordinary ground of a new trial.
This proceeding was brought to this court by certiorari. The defendant moved in this court to quash the writ, on the ground that the circuit court had the power and jurisdiction under the above statute to grant such new trial. This court sustained the motion, holding that the circuit court had such power and jurisdiction under said statute, notwithstanding the affirmance of the judgment on the writ of error. The motion was submitted on the brief of the defendant’s counsel, and on a brief of an attorney for the state, the attorney general for some reason omitting to file a.ny brief or cite any authorities on behalf of the state.
If the judgments and orders of the inferior court which are not final but only interlocutory, as intermediate steps in the proceedings, are brought to this court, then, of course, the judgment of affirmance by this court is limited to the precise matter appealed, and is final only as to that alone* while the main case remains all the time in the court below. It is only where the judgments appealed are final and fully dispose of the whole cause, as in this instance, that the affirmance thereof has the effect for which I contend. But as to such judgments the affirmance thereof must necessarily be res adjudicatei, and final as to the whole case, both as to the law and facts.
So far I have contended that any mere law which should authorize the lower court to do anything which would destroy or impair the finality and conclusiveness of a judgment of affirmance in such cases, is void. But the statute referred to has no reference whatever to such cases.' It refers to cases which have remained in the lower court, and over which it has full jurisdiction before any such final determination in this court. In criminal cases the statute provides two methods of bringing them to the attention of this court without a writ of error, which brings the whole record and the whole case to this court, and they are, first, by special exceptions; and, second, by special questions of law certified to this court. In the first case the exceptions are sustained or overruled, and in the'second the questions or
We conclude, therefore, that the decision of this motion is absolutely without aiothority as well as in violation of reason and the constitution. This statute, in its general terms, is no broader in its application to criminal cases than the statutes which authorize the circuit court to grant new trials generally or in civil cases, or even as broad, by reason of the above.clause, which clearly limits its operation to cases which have continued all the time in the circuit court, and within its full jurisdiction, “ before or after judgment.” In civil cases a new trial may be granted on the minutes of the court, or upon exceptions, for newly-discovered evidence, the verdict being contrary to the law or evidence, or for excessive damages, and other causes, with the only limitation that the “ motion must be heard at a special or regular term.” R. S. sec. 2878, et seg. The court or judge of the circuit court may relieve a party from a judgment “ through mistake, inadvertence, surprise, or excusable neglect,” with the only limitation of “ one year after notice thereof.” Sec. 2832, R. S. There is no exception made of any such cases as have been affirmed on appeal or writ of error by this court, whether civil or criminal. They all stand alike in this respect. It follows, therefore, that this decision is a binding precedent as to the power of the court below to grant new trials in all cases, after an absolute and unqualified affirmance of the final judgment by this court. The statutes and the reasons are the same in all possible cases, and the circuit courts and other courts of record may grant new trials ad libitum in all cases after an appeal from the final judgment of the whole case, and affirmance thereof
These consequences of the decision may not be ignored, even if they were overlooked, or however insidious the precedent, and they will be more serious and deplorable in •criminal cases than in civil, because they affect the prompt and certain execution of the criminal law for the protection of the peace and good order of society, by opening the vista of an interminable series of trials after the affirmance of the final judgment of conviction by this court, by which the criminal may finally escape. But more important than even these practical consequences is the emasculation or destruction of the constitutional power and jurisdiction of. this court, as the court of last resort, to render judgments of finality. Already this court has four times decided, in the strongest language possible, that its judgments of affirmance are final as to the subject matter appealed, and that the court below can take no step or do anything to impair or change it in the least particular. If the whole case bé appealed, or is taken by writ of error from the final judgment, then the judgment of affirmance by this court is final and conclusive as to the whole case, and the_ court below, on remittitur, can do nothing in the case, or with it, except to execute this final judgment of this court. In Smith v. Armstrong, 25 Wis. 51J, Mr. Justice Paine says in the opinion: “ This very judgment, having been rendered and affirmed on appeal to this court, has become final between the parties, and even though it were conceded that there were errors in it, they are no longer subject to correction in the circuit court under the guise of amendment.” In Stevens v. Clark Go. 43 Wis. 36, Chief Justice Ryan said: “We know of no case in this court, or indeed elsewhere, in which a judgment of affirmance has directed a new trial. Indeed affirmance of a judgment, ex vi termini, seems to preclude a new trial. . . . There is neither statute to
In other states where the jurisdiction- of the supreme court in respect to appeals and writs of error is the same as ours, it has been uniformly held that after a judgment of affirmance the court below can do nothing in the case except to execute such judgment, and no case can be found where it is held otherwise. All objections to the judgment not brought before the supreme court by writ of error and
When a judgment or decree of a circuit court of the United States has «been affirmed by the supreme court, even by a division of the judges, it is final and conclusive, and nothing remains for the lower court to do in the case except to execute it, and this is the doctrine of affirmance by the House of Lords on appeal in England. Durant v. Essex Co. 7 Wall. 107. A judgment is affirmed because it is correct in itself, and is therefore final and conclusive. Whiting v. Root, 52 Iowa, 292; Jamison v. Perry, 38 Iowa, 14. A judgment of affirmance will be conclusive upon all questions which might have been raised in the court below. If they are brought up by the appeal they are finally disposed of, and if not so brought up the3r will be treated as waived, and the affirmance must be final in all cases. Grimes v. Hamilton Co. 37 Iowa, 290. When the plaintiff failed to plead over or to prosecute his suit on overruling his demurrer to the answer, but appealed from the order overruling the demurrer, and the order is affirmed, the judgment of the supreme court is final beyond relief. Dunlap v. Cody, 31 Iowa, 260. When a judgment of the lower court has been affirmed by the supreme court, the judgment of affirmance is the final judgment, and not the judgment appealed from, and can only be set aside or modified by the supreme court, if at all. Griffin v. Seymour, 15 Iowa, 30. After an affirmance of a judgment on an appeal which brings up the whole case or on its merits, there can be no trial de novo. Trescott v. Barnes, 51 Iowa, 409. Where a judgment against several must be reversed as to some of the appellants, and ought
A judgment of the supreme court is a finality on every fact and question that came before it on the appeal, and it is the facts, and not the evidence of the facts, that enter into the estoppel. Gill v. Morris, 11 Heisk. 614. The decision of the supreme court is a finality, and the same case embraced in the appeal can never again come before the court by any proceeding in the court below. Rector v.
References like the above could be extended to a great length, for the principle established in these cases has been asserted by nearly all of the supreme courts of the states. I desired to see whether there was any exception in the cases, and could find none. This court, on the decision of this simple motion, has established the only exception that can be found to the effect that the circuit court or court below, after a judgment of affirmance by this court on a writ of error and bill of exceptions bringing before this court the whole case together with the order of the court below over
There is no force even in the argument of convenience that the defendant ought to have justice done him under this statute when newly-discovered evidence shows him not guilty. The limitation-of one year after judgment may be as much a denial of justice. Every case must at some time be ended. Criminals maj'’ safely be left to the mercy of the executive for relief from punishment when their innocence can be made to appear by newly-discovered testimony after a final judgment by this court. As long as this decision stands, the appellant in every appeal, and the plaintiff in every writ of error, in any case, civil or criminal, may, after judgment of affirmance by this court, obtain from the court below a new trial for any of the causes named in the statute, within the time fixed by the statute after the rendition of the judgment in said court, without regard to the judgment of this court. This is the only reasonable and logical effect of the decision as a precedent to be followed in other cases. If the decision is sought to be limited to criminal oases, and by the .most glaring inconsistency, its effect in destroying the finality of a judgment of affirmance by this court follows as a consequence, and its effect in making criminal trials endless, as well as most uncertain in result, will also follow as a consequence to be deplored.
By the Court.— The motion to quash the writ of certi-orari is sustained.