*1 Cir., 510, 514, denied F.2d certiorari S.Ct. single proposition Not

(cid:127)opinions urged by party. filed was either

Upon Attorney has them the United States we opportunity

bad no be heard. Until hearing granted we

have such a I think case, to solve this done our best up our

as we should we do before throw Supreme ask grant

hands and Court to n certiorari, majority as the now do. idea has behind 2255 merit. It was § study problem (cid:127)drafted after much

n needed attention. n shouldbe procedure sensible Its

compared with the Mountain-to- procedure bringing Mahomet the testi- Judges, McCord, Holmes and dis- Circuit mony Michigan judge, of a and other Mich- sented. igan response witnesses to California corpus Walter latest McDonald’s habeas

petition. McDonald, Swope Cir., U.S.960, certiorari denied 337 1522,93 L.Ed. 1759. If there be infirmities I think § importance matter of considerable they

whether he of the character and extent Judge Stephens’ opinion stated in or wheth-

n er they be of the character and extent in Judge

stated opinion. Denman’s first situation,

If latter is the objec- true raised readily

tions can corrected

(cid:127)simple amendment, I think that this ought say

court not to that all the labor expended upon has been drafting

(cid:127)of 2255 must be committed to the § ashcan opportunity more thorough

argument before the yet than has

been afforded. CORPORATION OIL

SUNRAY ALLBRITTON.

No. Appeals

United States Circuit. Fifth 15, 1951.

Feb. *2 liability question

The crucial as to on appellant is whether the re- this tained control at the time derrick requested its fall. Neither side special jury instruction for a gave particular point; on this the court none; jury and the made no finding there- by jury finding on. There was a that immediately prior the derrick was defective collapse, to its its con- and that defective ap- dition could been discovered care, pellant by ordinary the exercise do, failure it failed to and which proximate was a cause of the derrick’s that, falling. findings at There were also immediately collapse time had, prior thereto, the contractor and the have, contractee did not control over the of the performance means and manner required appellee. which was work rejected appellant’s The court below jury’s finding as to contention means and man- had control over the who III., Houston, Rice, Bryson, C. E. H. Ben performing prevented ner of the work it Angus Brin, Long- Wynne, Philip Tex., G. theory being on the liable Howell, Tex., view, Oklahoma Edward retained control of the derrick. The Woodfin, Houston, Okl., City, Gene M. finding court held that such had reference appellant. Tex., for dispute to whether Allbritton Cire, Houston, Smith, George E. Edwin J. employed by appellant or the con- was Tex., appellee. for tractor; that he found was HUTCHESON, Judge, Chief Before by appellant. employed special No McCORD, BORAH, HOLMES, RUS- jury having made or finding been SELL, Judges. Circuit requested particular issue as to derrick, judge trial control HUTCHESON, Judge. Chief empowered 49(a) to make it under Rule Procedure, Federal Rules of Civil of the of the issues and For a statement By request failing to such 28 U.S.C.A. case, we refer to facts in this pertinent party jury, each waived the finding court, which is opinion of by jury. thereof On this D.C., F.Supp. reported agree We 49(a) provides point, Rule further said that, holding: court’s with the lower omitted follows: “As an issue premises control over the Sunray retained may make demand the court a find- such derrick, was bound exercise so, ing; or, if fails to do it shall to maintain the derrick care reasonable finding to have made in accord deemed use; and' that there in- safe condition judgment special on the verdict.” with the support its evidence substantial appellee that he Sunray retain such control. It is contended did finding that invitee too, business under derrick holding: that there was a agree, with its We premises support appellant; and on the evidence to substantial responsive pleading Sunray admitted its to ex latter findings, that failed jury’s appellee employee or care and that such failure was that either such “was ercise collapse alleged invitee defendant as of the proximate cause the an from this injuries plaintiff.” obvious sustained derrick admittedly Allbritton was either an em appellee. subrogation rights of its fendant virtue appellant. The invitee of the ployee or Appellee accord- under Texas. employee; the laws of not an found hold ingly prayed that he recover to have trial court found or deemed *3 n trustee, could this said sums he Allbritton as invitee. found that he was an an derrick; not do. He not the trustee required on the to work was not express 17(a), it; sense Rule in the not and his trust himself use work he did every provides action shall required which that way He no affected it. in in party brought in of the real name the distinguished handle tools as to express of an upon interest but the trustee machinery. go no did he At time without in his own name required trust sue derrick, though to be the party bene- joining for whose him the put danger of with point him in at a which Moreover, brought. it is independent fit the action is by it if it hit fell. Other being em- law that the now settled Texas performing work for contractors were right against ployee’s third to recover Sunray at the time it under derrick persons damages in is limited to excess fell, superintendent at latter’s compensation paid to him.1 oper supervising the whole same time was therefore, is, judgment The reformed finding, The trial ation. court’s Sun- by reducing $13,084.70, it sum ray control had surrendered and, reformed, supported as is Affirmed. appellee’s employer, is derrick to should not by substantial evidence and Reformed affirmed. clearly ap erroneous. be set aside arrangement working pearing from the McCORD, Judges, HOLMES and Circuit derrick remained under the control that the dissenting., appellant, appellee being aforesaid, ap follows invitee it HOLMES, Judge (dissenting). Circuit duty legal pellant was under exercise manifestly The moderated premises, ordinary keep in care excessive, my opinion, judgment in derrick, reasonably safe cluding the not be affirmed un- entered thereon should appellee’s for use. condition portion fully less the excessive remit- Finding no reversible error appellee. ted Heretofore has been it we, record, therefore, affirm the judg jurisprudence well settled in federal ment, except $13,- recovery as to general excessiveness verdicts in actions 084.70, paid had been to Allbritton which question personal for torts was a for compensation workmen’s insurance courts, and that courts lacked carrier, sought Allbritton had which jurisdiction such matters.1 The earliest Though on its it was to recover behalf. cases,,-and prototype of them these party interest, the real with Bedford, all, 433, Parsons v. Pet. therefor, party sue was not a to this 732, appellant wherein the com- suit, prosecute having failed and refused to plained of court’s refusal order the trial appellant. Instead, sought against testimony, to record the clerk which suing by agreeing to recover with might have an error of the established that, suit, appellee bring the he would upon Supreme issue of fact. The recover, it, hold for all sums he could assignment held Court immaterial against was entitled to recover de- that it Seventh the reason that Amendment Employers Brandon, Drug Store, nity Ins. Ass’n v. 1. Texas Co. v. Tex.Civ. Week’s 636, 153, Wm. App., 89 S.W.2d Cam 126 Tex. Traders & S.W.2d Tex.Civ.App., Gamble, & Co. v. eron Texas Co. v. West Utilities General Ins. Ponder, 165, 713, Co., Hanson v. Tex.Com. S.W. 165 S.W.2d 1401Tex. App., 35, 40; 8307, Dil Mitchell v. 300 S.W. also R.C.S. Texas See Art. lingham, Tex.Civ.App., 22 S.W.2d art. 8307. Ann.Civ.St. Jor Vernon’s Cf. 972; Pedigo Pedigo Croom, Collier, Tex.Civ.App., & Tex.Civ. dan v. 223 S.W.2d 1074, 1076; App., Hoffman 544i, S.W.2d Clinic, Tex.Civ.App., Houston 41 S.W.2d 134, 138; Indem & Accident Hartford upon mat- examination of the foundation prohibited its of such re-examination Bed- a rests classic in Parsons v. ters tried dictum where the issues were ford; appropriate. jury. is now decision of this constitutional dispo- question necessary jurisdiction That court has case, under sition of the Section because plaintiff remittitur, call on the for a with Judiciary 22 of Act of no reversal curtailing jury, out the function of the permissible of error was writ dis majority conceded both the Supreme fact. error of Court for Schiedt, senting opinions in Dimick Chap. 84, Chap. 20, 22, 2 Stat. Stat. Sec. L.Ed. 603. 2, p. 244, Chap. Sec. Sec. 18 Stat. *4 scholarly opinions See also in the Slocum Chap. 1, 318, R.S., p. 1011, Stat. 36 Sec. Co., 365, 364, v. N.Y. Life Ins.

231, 291, (1940 Ed.), p. 1167,28 Sec. U.S.C. then, 523, Why, 33 S.Ct. 57 L.Ed. 879. 28 879 revised U.S.C.A. Secs. and [See appellate not an federal court exercise 2105, 1], preceding note and § § power the the same amount of when the clearly verdict is excessive? The advan When of were abolished writs error tages procedure generally of rec such are therefor, appeals it was ex- substituted ognized, Northern Pacific R. R. Co. v. pressly appeals the provided Herbert, 642, 646-647, 6 U.S. subject the district courts should be to Valley Land Arkansas rules, as regulations, restrictions, same Mann, 69, 74, & U.S. Cattle Co. v. previously prescribed in law in cases were 9 S.Ct. 32 L.Ed. defendant the (1940 writs error. Title 28 of of U.S.C. prejudicially by is not a reduction affected September Judiciary Ed.) Act of him; adjudged against of amount the the 24, 1789, nearly twenty- adopted was merely option plaintiff given is have the to Amend- seven months before the Seventh accept a new trial or the maximum to language of ment became effective. The recovery that the has determined upon forbidding reversals writs the statute allowed; may be no and in either event any in fact was of error for error by jury one will been a trial denied whereas the qualification, limitation of according to the rules the common law. applicable language of Amend- the Seventh prohibits any of re-examination fact ment champion greater No of the common- by jury only ac- otherwise “than tried a of law ever lived than cording the of common law.” to rules He William Blackstone. called the statutory system glory power of the common This limitation on the courts, appellate except thought modi- it could 'survive unless the federal as jurors subject in misbehavior of mod- fied Rule remained effect until to 1, 1948, judges. September repealed when was eration Blackstone’s Com- 'it ' in had a wide circulation Amer- Code. The reason mentaries new Judicial immaterial, repeal is ica at time of Con- for its because the the Constitutional signers no is fact is that there was vention. said that sixteen evident intention part Congress Independence Declaration or the Revisors on knew scope from cover A book appellate extend book to cover. source code to science, prescribed legal beyond the landmark in law liter- judicial limits review ature, say Consequently, safe that its Amendment. it to contents the Seventh every plain lawyer familiar to American that this Amendment were isit present power in public in life 1789and 1791. There have barrier courts, English, in in cases excessive ver- been editions of federal German, upon French, Italian, plaintiff dicts, to 11 in call enter every judg- language, almost other or suffer a reversal one includ- remittitur ment; any According whether it is such the Chinese.2 to these Com- ing barrier mentaries, upon depends King’s the rules law the Court Bench had the common Therefore, appellate jurisdiction December a re- over on they this, Common Pleas and all inferior courts do not de- failed “or could it,” upon said, record. Blackstone cites authorities cide “it referred Bracton which, says, treatise, Glynn, higher Chief ato tribunal.” Bracton’s Justice 1665, grounded precedent compiled regard- the first 1250 and between granting of ex- its incomparably account work of ed best damages given “ap- cessive produced lawyer in jury; kind English prehending’, reason, notorious with ages. middle partiality jurors principal was a of his opening Blackstone read the species III, pp. of misbehavior.” Book Vinerian Lectures October 388, 389, King’s 390. Coke said that the court, King’s He said that Bench was jurisdiction had man- Bench all correct very jurisdiction high ner of errors in fact of all and in law transcendent; kept inferior all judges justices In the realm.3 jurisdictions of their within the bounds King’s Bench, Lord Mansfield pro- authority, their by removing either said there was no doubt but that the court ceedings progress prohibiting to it or their power had the opinion take of a below; court of likewise a *5 damages second where the were ex- removed, appeal might into which cessive.4 error, writ of of all determinations Pleas, Court of in- Common and all other every If verdict were final in the first England; ferior courts of record in but instance, great Commentator, said the high that even this and court so honorable destroy would tend to the valuable method resort, of last for its was‘not the court by jury, of trial away would drive might determinations writ be removed from the common-law courts all causes of of error into of or the House Lords consequence upon deposi- to be decided Chamber, Exchequer as the case said, tions. jury,” give “The “are to be, happen might according to the nature opinion instanter; is, their before Exchequer suit, though of the of the Court they separate, eat, or drink. And under were in- and the Court of Common Pleas these circumstances intelligent the most of King’s ferior to Court The Bench. may and best-intentioned bring men in a styled by of Pleas Court Common they upon verdict which themselves cool key as the Coke lock of the common deliberation wish to would reverse.” In law; error, yet a writ in the nature note, a he cites Bracton to the effect that appeal, lay from the Common Pleas erred, have justices if the shall and the Bench, King’s judicial to the whole pronounced judgment have according to authority of which was “said be in verdict, pronounce they their a judg- false judges.” mouth of Gavit’s Black- ment; ought therefore not follow stone, quotes p. 542. Blackstone Bracton up but should verdict amend it a fully expressing dignity power examination, they careful but if cannot King’s the Court Bench when he it, higher decide it shall referred to says justices of this court are time, tribunal.5 At that the motion for a chief, general, elder, perpetual, and ac- preceded entry judgment, king, companying appointed who are which was not entered the verdict injuries to redress the and correct course, nor as matter of at all after until III, of all 41-43; errors others. Book pp. days of first four the next term after Blackstone, Ed. of Lewis’ pp. 1054—1057. trial; judges did not think them- pronounce warranted At common law the selves false motion for a new remedy Not judgment. did the of orig- was a the nature of an power jurisdiction have appeal jury, inal to order the verdict of the which remittitur, and conditional origin were under a was a in its substitute for the writ verdict, attaint, duty to amend an excessive but of which turn succeeded the Appendix, Appendix, 3. Comment 5. See

4. See Comment 4. appeal In 26 writer

right On ac Law to trial battle.6 Yale Journal totally admits, quite it, p. 57, ac count that Blackstone is the writ attaint proved experience justice that curate saying laid “if aside because defect happened. surprise, inad “shortest, cheapest most at the trial vertence, imperfections misconduct, party or effectual cure for all . III, obtaining Black relief p. verdict.” in the court above Book Lewis’ stone, 13, p. a new pp. the earlier trial.” See also note 1351. Like article; 1, p. Univ. the same inferior courts of the United States Vol. Review; original appellate juris Chicago Law exercised Law Penn. both diction, presided King’s Review Bench to judges, who sat over or more one procedure by An remit- alternative to mutually con gether in courts were closely for titur is to scan the record more interchangeably courts nected and “were error, judgment that and reverse the III other.” each advice be af- excessive should Blackstone, p. p. Blackstone, Gavit’s York firmed. In Ins. Co. of New Home Blackstone, p. Lewis’ 309, 311, Co., Cir., Tydal old district of the United States courts judge alone said: “The trial this court jurisdiction exercised circuit court duty to the verdict has set distinguish proceedings did in their it. The most if dissatisfied with aside they or a whether sat as a circuit district do, thinks the court can by the nature court. This was determined weight according verdict is proceedings and the character evidence, is to scan trial more close- *6 judgments. the Southwick Postmaster Thus, by jury a fact ly for tried error.” General, 2 Pet. L.Ed. 479. otherwise than ac- re-examined would be. law, of procedure cording the rules the common by to The contention that remit- specious appellate in which took a more direct and less titur federal courts inhibited is law, approach contrary problem. At common to the the Amendment to Seventh Blackstone, Coke, Bracton, Bracton, teachings Ashton, according Fleta, of to the question Mansfield, of the Glynn, Coke, Blackstone, a Mansfield, was and Eng- discretion in ren- having their jury of the common law abused as to the rules of land; manifestly opinions excessive dering conflict with the of verdict for and in Stone, Brandéis, any motive Hughes, Holmes, Cardozo, damages often “without bad business, scope all; inexperience Rutledge, in to from the essential at misapprehension, inattention to purposes incapacity, of Seventh Amendment. It the circumstances, in- a thousand other opinion in conflict with the is likewise of Always Supreme praising the com- Galloway in causes.” Court United the nocent 372, 390, to States, quoting Bracton the after mon spirit amended with that the verdict should be the of Rule 87 L.Ed. effect erred, re- or “the matter 50(b) Rules of Civil Pro- if jury of the Federal the tribunal,” cedure; Blackstone higher of decisions the Sixth and to with ferred observation, Circuits; worthy says: of and with the actual “And it de- Ninth Supreme superior all infinitely others the the Kennon cision Court how itself, approves Gilmer, even U.S. 9 S.Ct. III, disposition of its revision.” Book very the final of which mode Blackstone, pp. 1348-9. Lewis’ impossible to reconcile with the Sev- it is Ch. upon referring the issue of except procedure of Amendment the basis enth The implies higher tribunal was damages to a decision the constitution- excessive the things procedure said appellate the that Blackstone ality exercise the one of remittitur, being expressly perfect that most excellent meth- rendered held there- glory “which was in od of decision the the Seventh Amendment was Maugre English Territory law.” this: shall force of Montana. the we full

á81 repudiate re-examining de- and referred) Blackstone such “excellent method fact; cision,” question looking of the common law it was as violative England com- The verdict that 1791? effort had rendered and judges upon higher mon-law tribunal facts verdict was which the question based. (the of which It ascertain the facts evidence of the manifest not, now, verbatim) is preserved verdict, excessiveness and this is- to sue was judgment commendable. was often disclosed re-examined before or from affidavits was taken entered. One officeor function of “who motion judge, appeal the “information” of the for a an new trial was report usually special made a and minute alleged verdict error of Now, fact jury.7 of the evidence.” with the facts If was sus- the verdict tained, them, stenographically reported, judgment entered; before thereon was majority if manifestly federal courts the verdict was found to be excessive, refuse justices to consider the excessiveness it was moderated supported or a granted. ap- verdicts if substantial new trial federal evidence, pellate practice and refuse determine of looking at verdict through eyes minimum amount will (evi- maximum or judge the trial stand; but, permitted they attempt dently think in an to convert an issue against weight question law) grew up fact into a evidence, they may country scan the record of during this of a existence error, closely probably trial more prohibited any federal statute reversal arduous, back for ex- send the case for an error of fact. This is trial, pensive, long-delayed when simple truth that cannot denied explained away a remittitur of the excessive amount would except by saying that pre- be better for plaintiff “higher original and without exercising this court” was judice to appellate jurisdiction, the defendant. not’ that is an explanation supported which cannot be Maryland Co., Casualty In Miller v. by English authorities. the common Yet 463, 465, decided in Sec- law alluded to the Seventh Amendment Lepisto. ond Circuit refused to follow the *7 is the common law of England, and our case, (Cabb Cir., Lepisto) v. 9 6 F.2d primary federal decisions are not author- thought might it but to be desirable England; ities as to the common law appellate power give courts the to review primary authority have a but we do toas damages, procedural the and that a Amendment, meaning the the Seventh difficulty presented, the Seventh Story, speaking when Mr. for the Justice bar, Amendment no being closing with court, says: “Beyond question, all the practice this statement: “Until the is common law here alluded is not to the frankly changed, must we adhere to state, common (for law individual questioned it exists.” as The court probably all), differs in is the com but it practice that it was bound to decide England, mon grand law of reservoir by unrealities,” issue such “tenuous as jurisprudence.” of all our S. v. Won U. judge whether the trial was acting within Fed.Cas.No.16,750, son, 1 5. Then Gall. the bounds of “tolerable conclusion” direct, English let us be and take the determining that the within approach to problem, common-law as bounds “reasonable inference from the required by the Seventh Amendment. evidence”, when damages it assessed the the amount at stated in the verdict. Courts Why should we look to decisions federal engage not should refine- such scholastic to ascertain the rules of common law ments, Judge said Learned Hand. unquestioned when construction of law, At common re-examining the Seventh Amendment indicates common damages issue of by pattern that had been as the England law that is to tried jury, higher a (to court copied? Why which Bracton not be should follow we date, moderating this all federal cir- (district, courts method

the common-law cuit, devising supreme) express a have had the verdicts instead excessive substitute, statutory power trials, grant how- new therefor?8 The substitute unconstitutional, by it cases because where there had been trial ever, is not jury, for reasons had substance for which new trials but the is not minutiae usually by granted the Sev- been in the courts preserved of law.10 jury that is then, How, fortiori, genuine say, can we if A convinced Amendment. enth manifestly excessive, according the rules this verdict is exactly procedure, suggest we no power is unconstitutional. remittitur? not the common substitute, appellate implied Procedure is court remittitur Under the power trials, directly grant error power should has no to review rendering practice. not jury in be confused with the civil fact committed law verdict; nearly if Blackstone manifestly argument answered this excessive years ago pointing or monstrous out the dis- is inordinate closely more tinction between civil (after scanning the record common ap- us, said, any), procedures. law finding With no new and not for errors whether trial is allowed unless be a manifest pellate court determine there mistake, subject-matter worthy its discretion court abused manifestly interposition, as law whereas civil setting the verdict aside process parties liberty Transfer Taxicab & Co. are at Detroit excessive. 193; questions merely Pratt, Cir., from court to 2 F.2d Carter Coal v. fact, Nelson, Cir., perpetual “which is a v. 91 F.2d source Co. chicane, delay, Dismang, expensive Union obstinate Western Tel. Co. Ed., p. Cir., 362, 364; litigation.” Fruit Lewis’ Southern Fulmer, Cir., 107 F.2d Distributors Finally, appears, far so neither the Virginian Ry. Co. v. Armen- question damages of excessive nor the trout, Cir., 156 F.2d question procedure remit- by re- judging 911. This is Am.Jur. was considered in Par- titur the court circuitous, control, at mote best Bedford, supra. sons v. On the merits uncertain, unsatisfactory A method. that, the court held even all evidence manifestly excessive in- verdict that jury passed had been in the ordinate; may in instances some record, it could not examine the correct- Each the three termed monstrous.9 verdict; yet ness Parsons unusual, adjectives something describes Armor, 3 Pet. where a abnormal, extraordinary. At common law waived, court treated the evidence *8 King’s engage Bench did not exceptions, of “giving a bill and ut- as to the mean- in refinements tenuous testimony force to the most favor ing of words. these opinion judg- Armor” per- says must reversed. It doing right, ment Next Blackstone 1349), why Ed., p. object the same great in ceived result should (Lewis’ reached, public justice as matter of have been the administration should satisfaction, the evidence been in give public and if the all had record be to Bedford, 433, many objections 7 liable to Parsons v. 3 Pet. L.Ed. verdict be and doubts, party away 732, given the court had “the go no would and utmost satisfied testimony prospect proffered reviewing had in favor it. force” to the unless he case, arraign, The latter due determination of Bedford. to its “He would source, manifestly unjust, high study abhor is entitled careful tribunal imagined analysis, should not be which he had done him an in- and followed scope possibility effect of the jury without a Seventh redress.” was written Judiciary From Amendment. It more than Act 1789 down to Appendix, Appendix, 10. Comment 10. 8. 8. See Comment 9. See

488 erraverint, justiciarii forty juratores years 5. Si et after that amendment was sub- eorum, pronun- adoption, judicium mitted secondum dictum for we have the same tiaverint, pronuntiationem; books and from same source material falsam faciunt dictum, sequi et ideo eorum which to common law of non debent determine the England per Supreme diligentem illud sed emendare tenentur were available dijudicare, nes- in 1830.11 our Court We should not close Si autem examinationem. ciant, question. majus judicium. minds great to this recurrcndum constitutional erit ad Blackstone, Lewis’ page McCORD, Judge, concurs in this Circuit principal There were four writs dissent. appeals proceedings the nature of king’s There were courts law. STRUM, part no Judge, Circuit took attaint, deceit, querela, writs of audita this decision. error. The of attain was a writ very remedy old of a verdict for reversal APPENDIX unduly given. in lieu of devised remedy the ferocious Norman of trial Tillotson, 392, 1. Minor v. 2 How. 43 battle. As the attaint succeeded 392, 134; writ of Suydam U.S. 11 L.Ed. v. William battle, son, so the motion 427, 978; 20 How. 15 L.Ed. York New a new trial was devised as one of sev- Fraloff, & Cent. H. v. Co. 100 Railroad might eral remedies an attaint 24, 531; Railway U.S. 25 L.Ed. Wabash avoided. The motion struck at errors McDaniels, 454, Co. 2 v. 107 U.S. S.Ct. record, appearing of fact not 605; because 932, Gilmer, 27 L.Ed. 131 Kennon v. testimony of witnesses was submitted 22, 696, 110; U.S. 9 S.Ct. L.Ed. Wilson 33 presence jury, viva voce Everett, 616, 664, 11 v. S.Ct. 35 writing. practice not reduced to 286; York, Erie, L.Ed. Lake West New & setting aside verdicts motions so Administrator, R. ern Co. v. Winter’s 143 superseded attaint, proceedings far 60, 356, 71; 12 City U.S. S.Ct. 36 L.Ed. appear few instances of them later than the Power, 436, Lincoln v. 151 14 U.S. century. 1764, Rainsford, J., In 16th 387, C. 224; 38 L.Ed. Boyd, Hansen v. 161 enough, deny- said: are wilful 746; U.S. 16 S.Ct. 40 “Juries ing parties new trial here will but send Torbert, Cir., Van Boskerck v. 2 184 F. Chancery.” Procedure, into Martin’s Civil 419; Maryland Casualty Co., Miller v. 2 308; Blackstone, 1348, 1363; p. pp. Lewis’ Cir., 1; 40 F.2d note Smith v. Stephen ; pp. on Pleading, 96 5 Harvard Co., Socony Cir., 2 Vacuum Oil 96 F.2d Review, p. 386. Law 98; State, 210; Bradham F.2d Swift Ellinor, Cir., Co. v. & F.2d as was to trial Just Co., Tydal Cir., Home Ins. Co. attaint, battle according writ 309, Id., Cir., F.2d Reid Bracton, Fleta, Blackstone: 3 Black- Nelson, Cir., 724; Virginian 154 F.2d Bracton, 1, c; stone 1.4 tr. Fleta Armentrout, Cir., Ry. Co. v. 166 F.2d 1.5, c. Sec. 8. 400; Crowell-Collier Co. v. Pub. Cald *9 Schiedt, 474, Dimick v. 8. 293 U.S. at 941; well, Cir., 5 170 F.2d Dowell v. 488, 296, page 302, at page 55 S.Ct. Cir., 182 F.2d 576. Jowers, 5 603, Stone, wherein L.Ed. Mr. dis- Justice page cover 2. See modernized edi- senting, denying motion, said: “In Blackstone’s Commentaries tion judge trial on two relied rules of the Gavit, Bernard Indiana Dean C. Univer- law complete common which have received sity of Law. School acceptance for centuries. One is that the History Holdsworth’s 3. the Com- power to act court has a motion to Law, 1, p. Vol. 212. mon aside the a jury verdict of set because Wood, Reports, inadequate excessive, Ducker v. 1 Term or in its discre- grant deny or trial. tion a new New

11 See Fraloff, simple procedure of the follow v. York &Cent. H. Railroad Co. for a treating common motion 24, law 31, Wilson 100 U.S. independent proceeding 621, trial Everett, 616, 11 S.Ct. new as 139 U.S. appellate may nature be called 664, Lincoln City 35 L.Ed. Power, 387, judicial greatest procedural 436, 438, 14 error in the 151 U.S. other, implicit history of States. the United L.Ed. 224. The which n first, power deter is that has 11. “The seventh amendment does upper mine, law, a matter provide shall facts tried recovery by a lower limits within which re-examined, they shall not be but that permitted au plaintiff will be than accord- not be re-examined otherwise * * * thority to set aside a verdict ing the rules of commonlaw. Valley within those limits.' Arkansas may court where Mann, U.S. Land & Cattle Co. proceed to reverse on the facts and then 74, Cf. 69, 458, 9 S.Ct. 32 L.Ed. a final determination of the case that Bennett, Ry. Southern Co. v. by jury Arti- destroyed.” has trial been 87, 566, 34 S.Ct. 58 L.Ed. 860.” Blume, Re- by Williatn entitled cle Wirt Jury are of Facts in Cases—The Seventh view extraordinary Excessive Amendment, October, 1936, given meaning dictionaries Journal with, Society, as, American synonymous Vol. being same Judicature p. 130. Inter- monstrous. New See Webster’s Dictionary, Wagnalls Funk & national Dictionary, Standard and Webster’s

New Unabridged Dictionary of

Revised Language.

English 17, Judiciary Act Sec.

10. Sec. of Revised Statutes the United States, 269 of the Code Sec. Judicial UNITED STATES. LOWDEN v. 391 of Title Code Sec. No. 12658. Code U.S.C.A. Sec. Pound, by Roscoe an excellent article In Appeals United States of which found its much has Circuit. Ninth present way into our Federal Rules 20, 1951. Feb. Procedure, “Upon any is said: Civil cause, appeal, sort power to make whatever have full should justice complete case and whole

order the require, substantive law with in accord remand, becomes unless new trial

necessary.” principles sug- The of this fully now contained Section

gestion are of 1948.

2106 of the Code Judicial quotation from said ar- following pertinent here: “At com- very is also

ticle prius, the cause nisi after at mon upon rule in banc the court heard or for motion in arrest for a simple In that non obstante. judgment *10 error, in the writ proceeding of a formal proceeding independent analogy character, true technical Unhappily, the procedure. for Portland, Lomax, Or., Leroy L. Vol. followed.” has been other appellant. p. 228. failure Journal, This Law Central