| Mo. | Jun 15, 1838
Lead Opinion
delivered the opinion of the court.
One Gabriel H. Barbour commenced an action in the St. Louis circuit court, against Harvey Williams, by petition in debt on a promissory note. Williams pleaded that the note was obtained by fraud; and on this plea
The first matter that Will be1 considered upon- this Statement of the case, is the' origin of the power of bur Circuit courts to gr'ant new trial's under any circumstances. In England, the courts exercise it as- a common law power, and according to their sound discretion; and in every description of case, civil and criminal, when substantial justice has not been done, unless they are prohibited from exercising it by law, or prevented by an1 unreasonable lapse of time. But although the courts are to some extent unrestricted in their power to grant new trials, yet the rule of court there requires ‘“that all objections to the verdict, intended to be made by the party interested, must regularly be made within the first four days of the term”—Rex v. Holt, 5 T. R. 438; and every motion for a new trial must be made within four day% exclusive, after the entry of a rule for judgment —2 Tidd’s Prac. 820; Douglas, 171, 797; and the same rule applies both to civil and criminal cases. In construing this rule,a distinction seems to be drawn between the rights of a party to move for a new trial,- and the power of the court to grant a new trial. The rule limits the right of the' party to move for a new trial to fofir days, but leaves the jwwer of the court to grant a new trial as it existed be-f©re the adoption of the rule.
As regards the power oí granting new trials in crimi--
In civil cases, in regard to the right of the party to move for a new trial, as before observed, the rule is the same as in criminal cases. Being the same in each description of cases, títere is no good reason why it should not receive the same construction in each. It may become quite as necessary in some civil cases, in order to do substantial justice, to grant anew trial after the four days have expired, as it is in many criminal cases; and there seems, too, to be about the same necessity for restraint upon the action of the court in the one case as in the other. And thus, in England, the court has exercised the'power of granting new trials after the four days in civil cases, where no motion has been made within four days; and has gone further, and even entertained a motion for a new trial, made after the time had expired, thus relaxing the rule more "than had been done in criminal cases. If is said this will not be done generally, yet the court, under particular circumstances, will permit a new trial to be moved for after the four'days have expired—Harrison’s Digest, 1531; 1 Doug. 171. Yet in civil, as well as in criminal cases, the court seertis rather disposed to act upon the suggestion of the party, than to entertain a motion for a new trial. But whatever may be the practice in regard to the right of the party to make the motion, it seems clear that the court has the power to grant new trials in civil cases, where no motion has been made within four days, and that, under particular circumstances, they will exercise that power. So much for the practice in England.
On tha subject of granting new trials, pur circuit courts derive no power either from oUr constitution or from any statute law of our State. Their power, then, is derived from the common law; and being derived from 'tlie same source, is the same in extent as the power exercised by the courts in England, except where our statute has imposed some limit. The only limit is in the second section of the seventh article, under the head of Practice at Law, R. C. 1835, page 470, which provides that u only one new trial shall be granted to either party, except, first, when the triers of the fact shall have erred in matters of law; or, second, where the jury shall be guilty of misbehavior.” The first section of this article is applicable to the right of theparty to make the motioD fora new trial only. The words of the law are these:
In the case under consideration, the plaintiff moved for a new trial, on the day after the trial, and asked leave to file his reasons at a subsequent time, and the court granted the leave; and on the tenth day after the trial, the plaintiff filed his reasons. By our law, “all motions for new trials shall be made within four days after the trial,” and every such motion shall be accompanied by a written specification of the reasons upon which it is founded” — R. C. ’35, sec. 1, p. 469. Whether the legislature meant here, that the motion and the reasons should be filed at the same time — that they should start together —that they should accompany each other from the making of the motion to the trial of the motion, or whether they intended that they shotild meet some where between the iwo points and accompany each other to the trial, seems to be some what doubtful. The law does not say,
The sum of the whole matter, under our laws, then, seems to be this; a party sleeps upon his rights until the time allowed him bylaw to make his motion for a new trial expires; he can no longer claim to make the motion as a matter of right; but he may afterwards suggest to the court that substantial justice has not been done him, an¿ the court may look into the matter or not. If they refuse to grant the party a new trial, no error will he, because no law authorized him to make the motion after tjle four ¿ayS expired; and this is a proper punishment for neglecting to assert his rights m due time. But the court may grant a new trial, on suggestions thus made, if th® peculiar hardship of the case makes it proper to do so; and when anew trial is thus granted, a writ of eiror will lie from the decision of the court, as in any other cass wfjere a new trialbas been improperly granted; but th® simple fact of granting it, when the party had made no motion within lour days, will not be cause of error, unless it has been granted after an unreasonable lapse of time.
In this case the court had jurisdiction of the subject
Concurrence Opinion
In the obove case, I am not entirely prepared to concur in the opinion just delivered. My opinion is, that the circuit court has no power to set aside a verdict in a civil cause, unless the party aggrieved thereby applies to the court to do so; and that, so far concerns the right of the party to do so, he must do it within four days, but that he may apply four days for an extension of the time, and if his reasons for extending the time are such as in justice and equity entitle him to the extension, the court ought to grant the extension. This I hold to be true doctrine, both regarding the motion for the new trial, and the sons for the new trial, which I take to be separate things in their nature.
In this case, the motion was made in time, but the reasons were not made in time; within the time the party had the time extended, which I think the court had power to do, according to the equity existing for doing so. Tho court, then, did the act which I think it had power to do, and 1 suppose was done for just reasons, and will hold it to be so till the contrary appears, which is not the case here. For these reasons, I think the rule fora peremptory mandamus ought to be overruled.
Concurrence Opinion
I do not concur in the conclusion to which the majority of the court has arriyed in this .ease. In my opinion, the circuit court has no right to extend the time for making a motion for a new trial be, y ond the time limited by the statute.