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on a motion to dismiss the summons for variance between that and the complaint (Brown v. Jones, 3 Abb. 80).

a. The decisions of the marine court upon questions respecting its practice, and not affecting the merits of the action, are not the subject of review in the common pleas (Brown v. Jones, 1 Hilton, 204). Nor are matters resting in the discretion of the court below reviewable, unless they affect the substantial rights of the parties, although returned by the justice as part of the proceedings in the cause (Mitchell v. Menkle, 1 Hilton, 142).

b. The refusal of a justice to allow an amendment of a pleading, if in any case a ground of appeal, can only be so when no injustice would result from granting the application (Tattersall v. Hass, 1 Hilton, 56; Waldheim v. Sichel, 1 Hilton, 45).

c. Reversal for want of evidence to support judgment.—The appellate court will order a reversal where there is no evidence to support the judgment whether defendant appeared on the trial or not, in actions in which the plaintiff has to prove his case (Moore v. Noble, 53 Barb. 425; Kasson v. Mills, 8 How. 377; Carter v. Dallimore, 2 Sand. 222; Alburtus v. McCready, 2 E D. Smith, 40; Wiley v. Slater, 22 Barb. 506; Calligan v. Mix, 13 How. 96; 12 id. 495; Jones v. Pridham, 3 E. D. Smith, 155; Fox v. Decker, id. 150; Ely v. O'Leary, 2 id. 355; Hunt v. Westervelt, 4 id. 225; Storp v. Harbutt, id. 464). But where the defendant does not appear in the court below, the court will not be astute to discover defects in evidence, where it appears no injustice has been done (Mayor of N. Y. v. Hyatt, 3 E. D. Smith, 156).

d. Reversal for admitting illegal testimony.-The court will reverse a judgment for the cause that illegal testimony influencing the decision has been admitted, except in a very clear case that no injustice has been occasioned (Main v. Eagle, 1 E. D. Smith, 619). Where evidence, erroneously admitted, tends directly to establish the plaintiff's case, although the issue might have been determined in the same way upon the other testimony, the error is not a technical one, but affects the merits, and cannot be disregarded in reviewing the judgment (Hahn v. Van Doren, 1 E. D. Smith, 411). But for admitting, or rejecting, testimony which the court can see could not affect the result, the court will not reverse (Harper v. Leal, 10 How. 276; Persee v. Cole, 1 Cal. R. 369); nor will it reverse where the return shows a special finding of fact upon sufficient evidence, exclusive of testimony objected to and improperly received (Martin v. Garrett, 4 E. D. Smith, 346). Although, on appeal, the court may be of opinion that evidence which has been improperly rejected in the court below would not have changed the verdict of the jury, yet, if it might have influenced their minds in considering the facts, and was competent, the court is not at liberty to overlook the erroneous rejection, and affirm the judgment (McAllister v. Sexton, 4 E. D. Smith, 41). And where improper testimony is received in the court below, which not only may have influenced the judgment, but which the return in terms states was taken into consideration in finding the facts, the appellate court cannot disregard the error, although there appears to be evidence in the cause which would have been sufficient to sustain the same finding, had the illegal testimony been rejected (Belden v. Nicolay, 4 E. D. Smith, 14).

e. Reversal in other cases.-A judgment will be reversed for an error in excluding proper and material evidence (Raymond v. Richardson, 4 E. D. Smith, 171); or where the damages are obviously excessive (Althouse v. Rice, id. 347); or for improperly nonsuiting a plaintiff (Gregory v. Trainor, 4 E. D. Smith, 58; see, however, Haulenbeck v. Gillies, 7 Abb. 421); or for not nonsuiting a plaintiff suing by a short summons, without giving security (Allen v. Stone, 9 Barb. 60); or for the justice omitting to wait an hour after the time when the summons was returnable, before proceeding in the cause (id.; see Beach v. McCann, 1 Hilton, 256); or when the judgment is against the clear weight of evidence (Heim v. Wolf, 1 E. D. Smith, 72; Searles v. Cronk, 38 How. 320). And, where the testimony is direct, unequivocal, and consistent, and the witnesses stand unimpeached and uncontradicted, the

court below cannot unreasonably discredit them; and if it does, the judgment will be reversed for that cause (Jacks v. Darrin, 3 E. D. Smith, 558; Baker v. Bonesteel, 2 Hilton, 397); or the judgment will be treated as founded on some erroneous view of the law applicable to it, and reversed on that ground (Goldsmith v. Obermeier, 3 E. D. Smith, 121).

a. When the judgment will not be reversed.—A judgment will not be disturbed on the ground of the reception of immaterial testimony, where the ground of the alleged immateriality is that the fact intended to be proved thereby is already sufficiently established by other evidence (Crane v. Hardman, 4 E. D. Smith, 448); nor for permitting an improper answer to be given by a witness, there being enough to sustain the judgment without such answer (Buck v. Waterbury, 13 Barb. 116); nor on the ground that it should be more favorable than it is to the party who has not appealed (Robins v. Codman, 4 E. D. Smith, 316; Glassner v. Wheaton, 2 id. 352); nor for a variance between the pleading and proof where no injustice has been done (Briggs v. Evans, 1 id. 196); nor for disregarding testimony; for it is competent for a justice to entirely disregard the testimony of a witness, if his manner of testifying, and other circumstances developed in the case, render him, in the opinion of the court below, unworthy of belief (Donohue v. Henry, 4 E. D. Smith, 162); nor where there is a conflict of testimony, except in cases of evident mistake, prejudice, passion, or partiality (Dempsey v. Paige, 4 E. D. Smith, 218; Pearson v. Fiske, 7 Abb. 419; Galoupeau v. Ketchum, 3 E. D. Smith, 175; Wilson v. Cook, id. 252; Easton v. Smith, 1 id. 319; Kasson v. Mills, 8 How. 367; Carter v. Dallimore, 2 Sand. 222; Bennett v. Scutt, 18 Barb. 347; Mendell v. French, 2 Hilton, 178; Pearson v. Fiske, id. 146; Justison v. Crawford, 25 How. 465); although the appellate court may consider that a different finding would have been warranted (Pozzoni v. Henderson, 2 E. D. Smith, 146; Biglow v. Sanders, 22 Barb. 147; Wiley v. Slater, id. 506); nor for admitting irrelevant testimony (Spencer v. Saratoga R. R. Co. 12 Barb. 382; Harper v. Leal, 10 How. 276; Persee v. Cole, 1 Cal. R. 369). Nor, is it ground for reversal, that there is an error to the prejudice of a party who has not appealed (Robbins v. Codman, 4 E. D. Smith, 316; Glassmer v. Wheaton, 2 id. 352; Orser vGrossman, 4 id. 443); or that additional evidence was admitted after the parties had once rested, but before the case had been finally submitted, and while the parties and their witnesses were all present (Harpel v. Curtis, 1 E. D. Smith, 78; Lambert v. Seely, 2 Hilton, 429); or that the justice refused to allow additional evidence to be given after a motion for a nonsuit (Reed v. Barber, 3 Code Rep. 160); or refused a motion to adjourn (Irroy v. Nathan, 4 E. D. Smith, 68). And the mere fact that it was proved that a former trial had been had between the same parties, when the return does not show how such trial terminated, will not warrant the reversal of a judgment for a plaintiff upon an issue, on a plea of "former judgment" (Morrill v. Whitehead, id. 239).

b. A judgment will not be reversed because of the admission of immaterial evidence at the trial, when it can be seen that no harm resulted from the admission (Moore v. Somerindyke, 1 Hilton, 199); nor for a defect in the complaint, although such as would have been good ground of demurrer, when such defects were supplied by the evidence, and no harm has been occasioned by such defect (Mayor of N. Y. v. Green, 1 Hilton, 393); nor where the cause was tried upon the assumption of the existence of a fact which was not proven, but which was incumbent on the plaintiff to have shown, and might have been established, if objection had been taken at the trial (Lee v. Schmidt, 1 Hilton, 537); nor for defect of proof, when, if objection had been taken at the trial, it could or might have been obviated (id.; see Paige v. Fazackery, 36 Barb. 392).

c. The court will not, on appeal, interfere with the finding of a justice, unless for such an obvious disregard of the weight of evidence, as to create a conviction that it must have proceeded from passion, prejudice, corruption, or palpable mistake (Tracy v. Hartman, 1 Hilton, 350). Where the justice re

turned that the testimony of two of the defendant's witnesses was given in a manner to deprive it of any weight, the appellate court refused to disturb the judgment, although, from the testimony returned, it probably would have come to a different conclusion as to the facts, from that arrived at by the justice (id.) The court refused to reverse a judgment in an action for damages, sustained by a nuisance, on the ground that the damages were excessive (Cropsey v. Murphy, 1 Hilton, 126).

a. The judgment of a district court will not be reversed on the ground that the court below allowed an amendment of the complaint, from breach of contract to tort (Doughty v. Crozier, 9 Abb. 411).

6. When the judgment will be reversed.-Where, after a motion for a nonsuit, the defendant supplies the omission of proof, only in part, the judgment will be reversed (Lambert v. Seely, 17 How. 432).

c. The failure of a justice of a district court to give judgment within four [now eight] days after the cause is submitted to him, deprives him of jurisdiction, and renders the judgment a nullity (Wiseman v. Panama R. R. Co. 1 Hilton, 300). Whether the consent of the parties to the cause extending the time for giving judgment relieves the difficulty, query? (id.)

d. A judgment of the marine court will be reversed when the action has been commenced by a short summons, and there is no proof returned to the common pleas of the defendant's nonresidence (Davidson v. Rushmore, 1 Hilton, 123).

e. Where, after the justice had disposed of the business before him, and a defendant who was in attendance asked him for the cause in which he had been summoned, and was informed by the justice that he had no such cause, and the defendant thereupon left the court,-held that the plaintiff could not afterwards proceed in the cause in the defendant's absence (Murling v. Grote, 1 Hilton, 116).

f. A judgment was reversed because it was rendered while counsel was summing up and before he had concluded (Prentice v. Sprague, 1 Hilton, 428).

g. When the court can only affirm the judgment.—Where the grounds of an appeal, prosecuted by one party, are insufficient, the appellate court, unless the other party has also appealed, can only affirm the judgment, although the case would have justified a recovery for a larger amount than is awarded in the judgment (Glassner v. Wheaton, 2 E. D. Smith, 352). Thus, where the plaintiff had judgment for $30, from which judgment the defendant alone appealed, the appellate court thought the judgment should have been for $70 instead of $30; but as the plaintiff had not appealed, it was held that the appellate could do no more than affirm the judgment. And see Berrian v. Olmstead, (4 id. 279).

h. Mistakes can only be corrected by a reversal of the judgment.—Where a justice, by mistake, entered judgment for $13 instead of $36, and the defendant would not consent to have it amended, the plaintiff appealed. It was held that the appellate court could not correct the error; they had power only to reverse the judgment (Hardy v. Seelye, 3 Abb. 103; 1 Hilton, 90; and see Bunker v. Latson, 1 E. D. Smith, 410; Edwards v. Drew, 2 id. 55; contra, Fields v. Mole, 15 Abb. 7; Lewis v. Fox, 11 Abb. 134, 281; 19 How. 561; 20 How. 96). Where both parties appear, and a trial is had, the court cannot reverse, except for error (Story v. Bishop, 4 E. D. Smith, 423). Where the judgment appeared to be plainly erroneous, being in form against two defendants, when the return showed that the plaintiff at the trial discontinued as to one of them, the court doubting its power to correct the error, reversed the judgment (Fanning v. Lent, 3 id. 206). If the appellate court think the judgment is for the right party, but for too large an amount, semble, it cannot reduce the amount (Kasson v. Mills, 8 How. 377). But where the evidence wholly fails to support a judgment for the damages awarded, but would sustain a judgment for a less amount, the court on appeal may suffer the plaintiff to retain the judgment for such sum as appears just, and may reverse as to the excess, if the plaintiff so elect (La Motte v. Archer, 4 E. D.

Smith, 46). Where a judgment of one of the lower courts is reversed on appeal, the court has the power to go further than a mere reversal, and give the judgment which should have been awarded below (Fraser v. Child, 4 E. D. Smith, 243; Brownell v. Winnie, 29 N. Y. 400).

a. New trial.—Power of the court to order, where defendant appeared.-The New York common pleas has not a general discretionary power to order a new trial upon appeal from one of the lower courts, merely because it seems that the ends of justice would be thereby promoted (Story v. Bishop, 4 E. D. Smith, 423); nor for newly-discovered evidence (Schwartz v. Bendall, 2 E. D. Smith, 123); nor because the defendant neglected to produce evidence, but did not at the trial think it necessary (Bunker v. Latson, 1 E. D. Smith, 410; Edwards v. Drew, 2 id. 55).

b. The giving a new trial, where the claim, by either party, exceeds fifty dollars, means a bona fide claim, and not a claim set up merely to secure a new trial (Houghton v. Kenyon, 38 How. 107; and see Stevens v. Benton, 39 How. 13). Orders granting a new trial not appealable (Wavel v. Wiles, 24 N. Y. 635).

c. New trial.—Power of the court to order, where defendant did not appear, and manifest injustice has been done.— This provision only applies to cases where the defendant does not appear on the trial (Bunker v. Latson, 1 E. D. Smith, 410; Edwards v. Drew, 2 id. 55; Rawson v. Grow, 4 id. 18; Hunt v. Westervelt, id. 225), on the return day (Wilde v. N. Y. & Harlem R. R. Co. 1 Hilton, 47; Williams v. McAuley, 3 E. D. Smith, 120; but see Beebe v. Roberts, id. 194; Armstrong v. Craig, 18 Barb. 387; Mix v. White, 1 id. 614; see Tanner v. Marsh, 53 Barb. 438).

d. The defendant, to entitle himself to relief, must not only satisfactorily excuse his default, but he must go further. He must show that manifest injustice has been done. A bare affidavit of merits is not sufficient. Facts must be stated, and not conclusions, to enable the court to see that such injustice exists (Armstrong v. Craig, 18 Barb. 387; Fowler v. Colyer, 2 E. D. Smith, 125). And the appellant's (defendant's) affidavit merely will not be sufficient, when contradicted by the affidavit of the plaintiff, and of a witness who proved the claim on the trial (Gottsberger v. Harned, 2 E. D. Smith, 128). Where a party seeks to procure a new trial under such circumstances, he should furnish, in addition to his own affidavit, the testimony of a witness to establish his defense (id.; and see Van Wyck v. Kelly, id. note b.; Gardner v. Wight, 3 id. 334; Silkman v. Boiger, 4 id. 236; Lent v. Jones, id. 52; Camp v. Stewart, 2 id. 88).

e. The fact that the defendant mistook the return-day of the summons may form sufficient ground for directing a new trial (Gottsberger v. Harned, 2 E. D. Smith, 128; Gardner v. Wight, 3 id. 334). But the mere fact that the defendant "forgot the time of trial," unaccompanied by any circumstances explaining or excusing his forgetfulness, is not satisfactorily excusing his default (id.; Ball v. Mander, 19 How. 468; Beebe v. Roberts, 3 E. D. Smith, 194). Default, satisfactorily excused by reason of the "mistake," or "neglect " of the attorney or agent (Seymour v. Elmer, 4 E. D. Smith, 199; 1 Abb. 412; Camp v. Stewart, 2 E. D. Smith, 88). Default, not "satisfactorily excused" (Travis v. Bassett, 3 E. D. Smith, 171; Bissel v. Dean, id. 172; Fowler v. Colyer, 2 id. 125; Mulhearn v. Hyde, 3 id. 177; Forster v. Capewell, 1 Hilton, 47; Mayor of N. Y. v. Green, id. 393); “manifest injustice" not shown (Travis v. Bassett 3 E. D. Smith, 177; Haughey v. Wilson, 1 Hilton, 260).

ƒ. Appeal upon error in fact.-On an appeal founded on error in fact, the appellant should serve, before or with the notice of the argument of the appeal, the affidavits of the facts relied on as constituting the error (Hurd v. Beeman, 8 How. 254; approved, Cook v. Swift, 10 How. 215). Where there are conflicting affidavits as to an alleged error in fact, the return of the justice will in certain cases govern (Kelly v. Brower, 1 Hilton,

g. The words errors of fact, as used in this section, have no reference to

an erroneous finding of the court or jury upon the evidence, but they refer to those errors of fact not appearing from the record or evidence, such as the infancy, coverture, &c., of some of the parties who have not properly appeared (Kasson v. Mills, 8 How. 377; Bigelow v. Sanders, 22 Barb. 147; and see Adsit v. Wilson, 7 How. 64; Hurd v. Beeman, 8 id. 256). On such appeals affidavits are necessarily received to "show the commission of the error in fact, not affecting the merits and not within the knowledge of the justice" (Beebe v. Roberts, 3 E. D. Smith, 195).

a. Where a summons was, during the absence of the defendant from home, served upon his son, and returned by the constable personally served, and the justice, without any appearance by the defendant, rendered judgment for the plaintiff,-held that the judgment might be reversed on appeal, on the error as to the service being clearly shown to the appellate court (Fitch v. Devlin, 15 Barb. 47; see, however, Carroll v. Goslin, 2 E. D. Smith, 376; Tanner v. Marsh, 36 How. 140; 53 Barb. 438). Where a nonresident was sued by a long summons, on the return-day he appeared before the justice and stated he did not appear in the action, but attended only to inform the court he was a nonresident; he did nothing more, and left the court. The plaintiff took judgment. On the appeal to the county court, defendant offered affidavits to show his nonresidency; that court rejected them, and affirmed the judgment. On appeal, the supreme court held that the affidavits should have been received, and reversed the judgment of the county court and of the justice (Willins v. Wheeler, 8 Abb. 116; 17 How. 93).

b. Argument of appeal.—Appeals to the New York common pleas are heard orally, at the general term appointed for the submission thereof. The court requires both parties to be ready when the appeal is called. Engagement of counsel elsewhere is not a sufficient ground for a postponement (Tryon v. Jennings, 12 Abb. 33; 22 How. 421). The parties will be confined on the argument to a brief statement of the facts and points involved and authorities relied on, unless the court shall otherwise direct (Rule Oct. 1857). The return must be submitted (Smith v. Van Brunt, 2 E. D. Smith, 178), and suitable points should be furnished by counsel on the submission of an appeal (De Agreda v. Faulberg, 3 E. D. Smith, 178; Suydam v. Munson, 2 id. 198).

c. Judgment of affirmance.-On affirmance of a judgment, judgment is to be entered of affirmance and for the costs of the appeal, nothing more. These costs may be collected by execution (Onderdonk v. Emmons, 2 Hilton, 504).

d. Opening judgment of affirmance by default.-On an application to open a judgment of affirmance taken by default, the court requires the appellant to show a meritorious ground of appeal, and this ascertained by the statement of the case without argument, or by inspection of the return (Tryon v. Jennings, 12 Abb. 33; 22 How. 421).

e. Reversal in part.-The appellate court may reverse a justice's judgment as to one defendant and affirm it as to another (Fields v. Moul, 15 Abb. 6).

f. Conditions on reversal.-The appellate court cannot engraft on a judgment of reversal any provision for preserving the testimony of a witness taken on the trial, although such witness has left the State, and his testimony cannot be procured on a new trial (Norris v. Bleakley, 3 Abb. 107; 1 Hilton, 90).

g. Effect of reversal.-Where a judgment for the plaintiff is reversed without an award of judgment for the defendant upon the merits, such reversal is not conclusive of the rights of the parties (Ellert v. Kelly, 4 E. D. Smith, 12; 10 How. 392). A judgment reversed on technical grounds is not a bar to a subsequent action (Onderdonk v. Ranlett, 3 Hill, 323), nor is a judgment in a case in which the justice had no jurisdiction (Blin v. Campbell, 14 Johns. 432; Kintz v. McNeal, 1 Denio, 436). After reversal of a judgment of nonsuit, plaintiff's course is to proceed de novo (Anon. 9 Wend. 503).

h. Amending judgment.-The New York court of common pleas

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