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should show that improper remarks were made after his exception. Fry v. Bennett, 3 Bosw. 200, 242.

18. What bill of exception should and should not embody It is not necessary to embody matter of record in a bill of exceptions. Johnson v. Sepulveda, 5 Cal. 151.

19. Documents and affidavits, to be reviewed by the appellate Court, must be embodied in a bill of exceptions or record. Gates v. Buckingham, 4 Cal. 286.

20. Affidavits as to the incompetency of a juror must be embodied in a bill of exceptions, to be reviewed by the appellate Court. People v. Stonecifer, 6 Cal. 411.

21. Where the Court below charged the jury, among other things, that if they found for plaintiff, he was entitled to recover the value of the use and occupation from October, 1853—a period long anterior to the commencement of the action, the complaint not containing any averment as to the time when plaintiff's title accrued or existed, etc.—and the defendant excepted generally to all the charge, and followed this general exception up by a specification of certain portions of the charge to which his exception was particularly directed : Held, that this general exception did not cover the charge as to damages. Payne v. Treadwell, 16 Cal. 248.

22. A trial before a referee should be conducted in the same manner as before a Court, and the evidence should be embodied in a bill of exceptions and certified by the referee. Goodrich v. City of Marysville, 5 Cal. 431 ; Phelps v. Peabody, 7 Id. 52.

23. When the referee excludes proper testimony, or admits improper evidence, or does any other act materially affecting the rights of either party during the progress of the trial before him, then such party should except, and see that the exception is truly stated in the report. Branger v. Chevalier, 9 Cal. 362.

24. Mode of reserving question of law.–Where the Court below tries the cause without a jury, the proper mode of reserving questions of law is to ask the Court to decide them, and note the refusal in a bill of exceptions. Grisvold v. Sharp, 2 Cal. 17.

25. Where plaintiffs, having excepted to the ruling of the Court excluding certain evidence, take, in consequence of such ruling, a nonsuit, with leave to move to set it aside, they do not waive any of their rights as to the exceptions taken. Objections to the introduction of evidence confined on appeal to the grounds taken below. Natoma W.8. M. Co. v. Clarkin, 14 Cal. 549.


$ 191. When deemed excepted to.

When a cause has been tried by the Court, or by referees, and the decision or report is not made immediately after the closing of the testimony, the decision or report shall be deemed excepted to on motion for a new trial or on appeal, without any special notice that an exception is taken thereto.

1. A report which is not made immediately after the close of the testimony, by the one hundred and ninety-first section of the Practice Act, is deemed as excepted to. Headley v. Reed, 2 Cal. 322.

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SEC. 192. New trial defined.

193. When new trial may be granted.
194. When application for new trial to be made upon

affidavit or statement.
195. Notice of motion for new trial; when and how state-

ments or affidavits to be made and filed. 196. Motion to be made without delay.

§ 192. New trial defined.

A new trial is a reëxamination of an issue of fact in the same Court, after a trial and decision by a jury, Court or referees.



$ 193. When a new trial may be granted.

[1862.) The former verdict or other decision may be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes materially affecting the substantial rights of said party :

1st. Irregularity in the proceedings of the Court, jury, or adverse party, or any order of the Court, or abuse of discretion, by which either party was prevented from having a fair trial.

2d. Misconduct of the jury, and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict, or to a finding on any question or questions sub mitted to them by the Court, by a resort to the determination of chance; such misconduct may be proved by the affidavits of any one or more of the jurors.

3d. Accident or surprise, which ordinary prudence could not have guarded against.

4th. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5th. Excessive damages, appearing to have been given under the influence of passion or prejudice.

6th. Insufficiency of the evidence to justify the verdict, or other decision, or that it is against law.

7th. Error in law, occurring at the trial, and excepted to by the party making the application.

N. Y. Code, $ 264.

1. New trial will be granted when justice requires.-Where from the record it appears highly probable that the judgment of the Court below is founded neither upon law or equity, the Supreme Court should reverse the judgment or grant a new trial. Reed v. Jourdain, i Cal. 102.

2. It is error to refuse a new trial when justice requires that it should be granted. Ross v. Austill, 2 Cal. 183.

3. Injury is presumed from evidence erroneously admitted; and the adverse party must show clearly that no injury accrued, or the judgment cannot stand. Grimes v. Fall, 15 Cal. 63.

4. Former verdict or decision will not be disturbed for im. material errors.-It is useless to put parties to the additional trouble and expense of a new trial, when we see clearly that after, perhaps, a protracted litigation, the result must be the same. Tohler v. Folsom, 1 Cal. 213; Smith v. Compton, 6 Id. 26.

5. A new trial will not be granted where the evidence shows that a case cannot be made out, and it would consequently be a useless expense. Suñol v. Hepburn, 1 Cal. 285.

6. To entitle an objection to notice, it must not only be on a material matter, affecting the substantial rights of the parties, but its point must be particularly stated. The party must lay his finger on the point of his objection. Kiler v. Kimball, 10 Cal. 267.

7. Where it is apparent, from the whole case, that the plaintiff can, in no event, recover anything but nominal damages, the Court will not grant him a new trial, although an error has been committed in the charge. Hopkins v. Grinnell, 28 Barb. 533.

8. The Court will disregard error in the admission of evidence against objections, where it is plain that it could not have prejudiced the case with the referee, and that, if it had not been received, his conclusions must necessarily have been the

Belmont v. Coleman, 1 Bosw. 188. 9. Application must be made by the party aggrieved.-A new trial will not be granted for an error by which the rights of the party were not prejudiced. Kilburn v. Ritchie, 2 Cal. 148.

10. Where the instructions of the Court, though incorrect in law, are all in favor of the defendant, he cannot complain of the error. Gaven v. Dopman, 5 Cal. 342.

11. An error in an instruction which does not militate against the appellant, or a mere want of perspicuity on the part of the Court below in framing instructions, is not a ground of reversal. People v. Moore, 8 Cal. 94.

12. A party cannot move to set aside a verdict in his own favor, on the ground that the evidence was insufficient to sustain it. Moore v. Wood, 19 How. Pr. 405.

13. Errors occurring at the trial must be specially excepted to at the time. When there has been no objection raised or exception taken to the insufficiency of the evidence, this Court would presume that sufficient evidence of a proper character was given to warrant the verdict. Bunting v. Beideman, 1 Cal. 182.

14. Courts will require an objection to the sufficiency of evidence to be made at the time the same is offered to be introduced, so that a party may have the opportunity of supplying the necessary evidence. Goodale v. West, 5 Cal. 341.

15. An objection to a form of a verdict should be made on motion for a new trial. It is too late to raise it in this Court for the first time. Douglass v. Kraft, 9 Cal. 562.

16. Where a defendant's objection to the admission of testimony on the trial is


general, he cannot be permitted to make it special for the first time in this Court. People v. Glenn, 10 Cal. 32.

17. Where the objection to the introduction of testimony was in general terms that it was irrelevant, the objection will not be considered in the Supreme Court, if the testimony could, under any possible circumstances, have been relevant. Dreux v. Domec, 18 Cal. 83.

18. Where an objection is taken to the admission of evidence, without a specification of the grounds of the objection, it does not merit consideration. kiler v. Kimball, 10 Cal. 267.

19. Where instructions to the jury are not excepted to at the time they are given, or refused, and a motion for new trial is made for error in giving or refusing such instructions, they cannot be considered on appeal from the order denying the motion. Collier v. Corbett, 15 Cal. 186.

20. A refusal to give an instruction cannot be urged as error for the first time, on a petition for a rehearing on appeal. Payne v. Treadwell, 16 Cal. 247.

21. A party cannot take his chances for a verdict on instructions given and refused, without exceptions taken, and then, after verdict, except to the action of the Court upon motion for a new trial. Letter v. Putney, 7 Cal. 423.

22. On motion for new trial the Court cannot reverse a former judgment.-On motion for new trial, it is irregular for the Court to reverse its first judgment, and render a contrary one, without hearing or notice. Mitchell y. Hackett, 14 Cal. 661.

23. A new trial awarded on the ground that the case had not been fully considered in certain important aspects. Mills v. Van Voorhies, 10 Abb. Pr. R. 152.

24. Granting or refusing motion for new trial discretionary. Motion for new trial is addressed to the sound discretion of the Court, and the Supreme Court can interfere only in cases of plain abuse of such discretion. Peters v. Foss, 16 Cal. 357; Drake v. Palmer, 2 Id. 181; Watson v. JicClay, 4 Id. 588; Hastings v. Steamer Uncle Sam, 10 Id. 341 ; Burnett v. Whitesides, 15 Id. 36.

25. Where the evidence is conflicting, the granting or refusing a new trial rests in the discretion of the Court below, and this Court will not interfere, whether the new trial be granted or refused. Weddle v. Stark, 10 Cal. 301.

26. Where, on trial of an ejectment suit, certain evidence offered by defendant was rejected, on the ground that the averment in the answer that the original location of the lot in dispute was according to “ the actual plan, then used and recognized, of the town of San Francisco or Yerba Buena," meant the map of the survey, and not the actual survey or plan on the ground, and the Court refused the defendant permission then to amend his answer in this respect, but subsequently granted him a new trial for that purpose : Held, that the Court below had the power to grant the new trial of this cause; and that this Court will not interfere. L-strade v. Barth, 17 Cal. 285.

27. The Court below may refuse a new trial, even though both parties consent to it. Where a case has been once fully tried, parties have not an arbitrary discretion to renew the litigation. Phelan v. Ruiz, 15 Cal. 90.

28. Where, in a chancery cause, certain issues of fact are submitted to and determined by a jury, the granting of a new trial is entirely discretionary with the Chancellor, and his action is not revisable. Gray v. Eaton, 5 Cal. 448.

29. Where the motion for new trial, though marie, does not appear to have been acted on, the appellate Court will not consider the sufficiency of the evidence to sustain the verdict. Myers v. Casey, 14 Cal. 542.

30. New trial in equity cases.-The Practice Act applies as well to legal as equitable actions, so far as its provisions are consistent with the rights and remedies administered in Courts of Equity. And the only way in which the verdict of a jury on issues submitted can be reviewed, is by motion for new trialexcept, probably, that the Court, whether sitting in equity or on the trial of a common law action, may, of its own motion, set aside the verdict of a jury when clearly and palpably against the evidence. Duff v. Fisher, 15 Cal. 375.

31. There is no substantial difference between a rehearing in an equity case, which opens the decree and places the case before the Court for trial anew, and a new trial in a case at law, tried and decided by the Court. Riddle v. Baker, 13 Cal. 295.


32. A refusal to grant a new trial is no ground of error, particularly in an equity case, where there may have been no necessity for a new trial; as upon application to the Court upon the pleadings and facts before it the proper decree might have been rendered, notwithstanding the verdict; or, if refused, the error corrected by appeal. Phelan v. Ruiz, 15 Cal. 90.

33. New trial in cases tried by a referee.-The provisions of the Practice Act relating to new trials are general, and vest in Courts the same power, in cases tried by a referee, as in cases tried by the Court itself, or by a jury. Cappe v. Brizzolara, 19 Cal. 607.

34. A Court has power to set aside the report of a referee, and grant a new trial, on the ground that the evidence before the referee was insufficient to justify his decision. Id.

35. After the rendition of judgment upon a report of referee, the Court may award a new trial, and set aside the report for any reason that would be sufficient to set aside the award of an arbitrator, and for no other. Headley v. Reed, 2 Cal. 322.

36. Errors in the report of a referee must be taken advantage of by written objections to entering judgment on it, or by a motion for a new trial. Porter v. Barling, 2 Cal. 72

37. The Court will not disturb the award of an arbitrator or report of a referee, unless the error complained of, whether of law or fact, appear on the face of the award or report. Tyson v. Wells, 2 Cal. 122.

38. If there be no exceptions embodied in the report, showing that the referee erred in fact, and the rule of law by which he arrived at his conclusions be not disclosed, the Court cannot disturb the report; and an order granting a new trial in such case will be reversed. Id.

39. A report of a referee, like the verdict of a jury, is, as a general rule, conclusive in a case of conflict of evidence. (1 E. D. Smith, 85; 3 Id. 98; 4 Id. 365 ; 3 Cow. 168.). It is, therefore, like such verdict, only to be set aside when the finding is clearly against the weight of evidence, or where, upon the trial, some rule of evidence or principle of law has been violated. (1 E. D. Smith, 85; 5 Duer, 216); Hoagland v. Wright, 20 How. Pr. 70.

40. County Court may grant new trial.—The appellate power of the Supreme Court over the County Court could not be properly or efficiently exercised, unless the power to grant a new trial existed in the County Court. The County Court certainly has power to grant a new trial. Dickenson v. Van Horn, 9 Cal. 211.

41. Equity will not interfere, if new trial is refused.-Where a party moves for a new trial and fails, he cannot, on the same facts, go into equity and enjoin the judgment rendered. Collins v. Butler, 14 Cal. 226.

42. Effect of stipulation that motion for new trial be denied.Where the parties in the Court below stipulated that a motion for a new trial should be denied, they cannot question in this Court the correctness of an order denying such motion. Brotherton v. Hart, 11 Cal. 405.

43. First subdivision.-A new trial will be ordered where there is such irregularity in the proceedings that the ends of justice will be better subserved. Sannickson v. Brown, 5 Cal. 58.

44. Where a judgment is rendered at nine a. M. upon a summons citing defendant to answer at 10 A. M.: Held, that the judgment is irregular, and a new trial will be ordered. Parker v. Shephard, i Cal. 132.

45. A verdict of a jury will not be set aside on the ground that one of the jurors “knew and was aware of the circumstances connected with the affair,” the subject matter of the suit, when no objection to him was made until after the verdict was rendered, and it not appearing that he had formed or expressed an opinion before the trial, or was in any way biased in favor of the plaintiff

. Lawrence v. Collier, 1 46. As to new trial because of an incompetent juror. Thompson v. Paige, 16

47. Where a jury are instructed to bring in a sealed verdict, and they retire, and, after agreeing upon the verdict, seal it up and give it to the officer in charge

Cal. 37.

Cal. 77.


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