CHAPTER X.

PROCEEDING AFTER VERDICT.

SECTION 59. MOTION FOR A NEW TRIAL.

3

2

"A motion for a new trial may be defined to be an application by a party interested in the action for an order of court granting a re-trial or re-examination in the same court of an issue of fact, or some part or portion thereof, after verdict by a jury, report of referee, or a decision by the court.' It is an application for a re-trial of the facts of a case, or an application for a re-examination of an issue of fact before a court, or jury, which has been tried at least once before the same court, or an application for a 'rehearing of the legal rights of the parties upon disputed facts,' or an application for a 're-examination of the issues in the same court,' or, in a criminal case, it is an application for a 're-examination of the issues in the same courts before another jury after a verdict has been given.' A motion 'to set aside and vacate the verdict of the jury,' upon the ground that the verdict is not sustained by sufficient evidence, and is contrary to law, and also for alleged errors of law occurring at the trial, which does not in terms purport to be a motion for a new trial, but which is so treated by the parties and the trial court, will be regarded

1 Gen. Stat. Nev. (1885), Sec.

3216; Prac. Act, Sec. 194. 'Z'aleski vs. Clark, 45 Conn., 401. The general nature and history of these motions in Connecticut is fully explained in this case in a note, page 405.

Hilliard on New Trials, Sec. 1.

* 2 Bouvier's Law Dict., tit. New Trials.

Rev. Stat. Mont. (1888), page 135, Sec. 295.

• Miller's Annot. Cases, Iowa, 1886, Sec. 4487.

as a motion for a new trial by the appellate court." 7 8

The granting of a new trial rests largely in the discretion of the trial judge, and his decision on the matter would not be disturbed by the appellate court except in clear cases.

The right to move for a new trial is a comparatively recent addition to the system of common law pleading.

SECTION 60. MOTION IN ARREST OF JUDGMENT.

A motion in arrest of judgment, like a motion for a new trial, must be made in the court where the verdict was rendered. It can only be made by an unsuccessful defendant, and must be based on error apparent on the face of the record.

SECTION 61. MOTION FOR JUDGMENT NON OBSTANTE
VERDICTO.

This motion is made by the plaintiff.

"It was made in cases where, after a pleading by the defendant in confession and avoidance, as, for example, a plea in bar and issue joined thereon, and verdict found for the defendant, the plaintiff, on retrospective examination of the record, conceives that such plea was bad in substance, and might have been made the subject of demurrer on that ground."

SECTION 62. MOTION FOR A REPLEADER.

"This motion may be made by the unsuccessful party, whether plaintiff or defendant, when he conceives that the issue joined was an immaterial issue, that is, not taken on a point proper to decide the action."'"

SECTION 63. WRITS OF ERROR.

"A writ of error is a writ issued from a court of appellate jurisdiction directed to the judge or judges of a court of record, requiring them to remit to the appellate court the record of an action before them, in which a final judgment has been entered, in order that examination may be made of certain errors alleged to have been committed, and that the judgment may be reversed, corrected, or affirmed, as the case may require." 10

A writ of error will only lie for substantial errors," never for mere formal errors.12 The errors relied upon must also appear upon the face of the record." In Machea vs. United States1 the court said on this point:

"The district attorney for the United States has filed a motion to dismiss the appeal, because no bond was given, and because, the suit being one at law, no appeal would lie; and he also moves to dismiss the writ of error because there are no bills of exception nor assignments of error accompanying the same. The plaintiff in error makes no pretense that there is any appeal before the court, but does insist on his writ of error, and submits the case to the court on the facts as though the case were on appeal. The whole merits of the case are argued as though the court on writ of error could inquire into them and give relief. The jurisdiction of the court, however, extends no further than to pass upon such error as may appear by the record; and as there are no bills

of exception to show any ruling of the court below

10 Block's Law Dictionary.

" Harris vs. Cole, 2 Fla., 400.

1 Pettes vs. Com., 126 Mass., 242.

13 Claggett vs. Simes, 31 N. Y., 29;
Gaffney vs. People, 50 N. Y.,
416.
14 26 Fed. Rep., 845.

prejudicial to the plaintiff in error nor assignments of error pointing out any part of the proceedings in the court below as injurious to the plaintiff in error, and as the counsel point out no error, and this court sees none on inspection of the record, it conclusively follows that the writ of error should be dismissed, and the judgment of the district court affirmed.

"A court of error is confined to a revisory jurisdiction only. It has no original jurisdiction except as conferred by statute, and accordingly must limit its examination to errors of law only."

In Parks vs. Turner1s the Supreme Court of the United States said in part:

1 12 Howard, 39. The lawyers'
edition of the Supreme Court
reports contains the following
note to the case:
"What questions the United
States Supreme Court will re-
view on writ of error; bill of
exceptions.

"In cases at law the Supreme
Court can only review the
errors of the court below in
matters of law appearing on
the record. If the facts upon
which the court pronounced
their judgment do not appear
on the record, it is impossible
for this court to say that their
judgment is erroneous in law.
Prentice vs. Zane, 8 How., 470;
1 Law Rep., N. S., 204.
"Error can only be founded on a
bill of exceptions in the record,
so far as it relates to the ruling
of the law by the judge, and
the admission or rejection of
the evidence. Beyond this an
appellate court has no power
to look into the bill on a writ of
error. Zeller vs. Eckert, 3
Howard, 289.

"Where the record contains a
bill of exceptions, the opera-
tion of the writ of error is not
confined to that portion of the
record. If error is apparent
upon any part of the record

it is open to review, whether it is found in the bill of exceptions or elsewhere. Suydam vs. Williamson, 20 How., 427. "When the whole record is brought up the court may reverse upon a defect not noticed below, and even upon its own notice of one not pointed out by counsel. Gurland vs. Davis, 4 How., 131, 143.

"The court will not review the
judgment of an inferior court,
unless it appears from the record
that the point which is contro-
verted was in fact decided by
the court below. It is not
sufficient if the point is involved
in the case, and might have
been raised and decided. Coons
vs. Gallagher, 15 Pet., 18.
"It must be shown that the court
below has erred, or the Supreme
Court cannot reverse its judg-
ment. It cannot proceed upon
conjecture of what the court
has laid down for law; it must
be shown what instructions
were in fact given and what
were refused. Bradstreet vs.
Huntington, 5 Pet., 402;
United States vs. Cook, 2 Mas.,

22.

"Only the errors presented in the record or bill of exceptions can be reviewed. Haney vs. Clark,

"Now as to the first objection, we certainly cannot adopt in this court the practice and mode of proceeding in the appellate court of Louisiana. For a writ of error can bring up to this court nothing but questions of law. And as the whole practice of Louisiana cannot be adopted in a case of this description, is the Circuit Court bound to follow it? And must the validity of this verdict depend upon the