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Plaintiff to furnish court with

copy of

&c.

Amended 1851.

Defendant

furnish

ings.

General

fined.

Amended 1849.

by the court, whenever, in its opinion, justice will thereby be promoted.

Where the defendant takes an order dismissing complaint for default of the plaintiff, when the cause is called on the calendar, he is entitled to the trial fee. Dodd agt. Curry, 4 How. 123.

§ 259. [Sec. 214.) When the issue shall be brought to trial

by the plaintiff, he shall furnish the court with a copy of the pleadings

, summons and pleadings with the offer of defendant, if any shall

have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to fur

nish the court with a copy of the summons and pleadings and court copy the offer of the defendant, the same may be furnished by the of plead

defendant.

8 260. [Sec. 215.) A general verdict is that by which and special verdicts de- the jury pronounce generally upon all or any of the issues,

either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court.

§ 261. In an action for the recovery of specific personal Ascoveryof property, if the property have not been delivered to the specific personal plaintiff, or the defendant by his answer claim a return

thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property.

[Sec. 216.] In every action for the recovery of money only, recovery of or specific real property, the jury, in their discretion, may ly, or real render a general or special verdict. In all other cases the jenderal court may direct the jury to find a special verdict in writer or special ing, upon all or any of the issues; and in all cases may verdict,and when court instruct them, if they render a general verdict, to find

upon particular questions of fact, to be stated in writing,

Verdict in action for

property

Amended 1849.

When in action for

money on

property,

eith

may direct

special finding

eral verdict former to

the re

on

ages.

.

Amended

and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes.

A special verdict should state facts, and not mere evidence of facts. Hill and Sandford vs. Covell, 1 Com. 522; Langley vs. Warner, 3 Com. 327. § 262. [Sec. 217.] Where a special finding of facts shall on special

finding be inconsistent with the general verdict, the former shall with genic control the latter, and the court shall give judgment ac- control. cordingly.

§ 263. [Sec. 218.] When a verdict is found for the plaintif lor actions in un action for tne recovery of money, or for the defendant when yourhery com

ly, jury to a set-off for the recovery of money is established, beyond the assess damamount of the plaintiff's claim as established, the jury must also assess the amount of the recovery; they may also, under 1851. the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off, established at the trial, exceed the plaintiff's demand so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly. § 264. [Sec. 219.] Upon receiving a verdict, the clerk shall Entry of

the . make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and 1861. either the judgment to be rendered thereon, or an order that the cause be reserved for argument or further consideration, The justice trying the cause may, in his discretion, and upon such terms as may be just, stay the entry of judgment and further proceedings, until the hearing and final decision of a motion for new trial, or to set aside the verdict or judgment, upon the grounds of surprise or irregularity, or upon a case or bill of exceptions.

The court shall have power to order a verdict to be entered, subject to the opinion of the court thereon. The judge who tries the cause may, in his discretion, entertain a motion to

Amended.

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be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or as being against evidence, or for insufficient evidence, or for excessive damages ; but such motions in actions hereafter tried, shall only be heard upon the minutes at the same term or circuit at which the trial is had, and if not heard at the same term or circuit in actions hereafter tried, the motion must be made upon a case or bill of exceptions, or upon appeal. When such motion is heard and decided upon the minutes of the judge, an appeal may be taken from such decision, and in case of appeal, a case or bill of exceptions must be prepared and settled in the usual form, and upon which case or bill of exceptions the argument of the appeal must be had.

After the trial of a cause, either party may, in the manner prescribed by law and the rules of the court in which the action is pending, make and settle a case or bill of exceptions, which when settled shall be filed, and when filed after judgment, shall be attached to and become a part of the judgment roll. Supreme Court Rules, 26, 31.

265. Motions for a new trial on a case or bill of excep Motions for a newtrial. tions, motions for judgment on a special verdict or case reserv

ed subject to the opinion of the court, shall in the first instance be heard and decided at a special term, unless the justice try. ing the cause shall direct it to be heard in the first instance at a general term. If such order is granted, directing it to be heard at a general term, such motion may then be noticed and brought on to argument by either party at a general terin of such court, and the court shall hear and decide the same.

A bill of exceptions taken on the trial could be heard only on appeal at a general term, under the Code of 1848 and 1849. Graham agt. Milliman, 4 How. 435.

A motion to set aside a judgment, upon matters of substance, is not required to be made the first possible opportunity. Lucas vs. Trustees, &c., of the church of Geneva, 4 How. 353.

Passed 1851.

.

1849.

1849.

CHAPTER IV.

Trial by the court.
SECTION 266. Trial by.jury how waived.

267. On trial by the court, judgment to be given in twenty days.
268. Exceptions, how and when taken.

269. Proceedings upon judgment on issue of law. § 266. [Sec. 221.] Trial by jury may be waived by the Trial by

jury, hovy several parties, to an issue of fact, in actions on contract, waived. and with the assent of the court, in other actions, in the Amended manner following:

1. By failing to appear at the trial.

2. By written consent, in person or by attorney, filed with the clerk.

3. By oral consent in open court, entered in the minutes. On trial bg § 267. [Sec. 222.] Upon a trial of a question of fact by judgment

to be given the court, its decision shall be given in writing, and filed in twenty with the clerk, within twenty days after the court at Amended which the trial took place. . Judgment upon the decision shall be entered accordingly.

What facts necessary to put a cause over the circuit. Pulver vs. Hiserodt, 3 How. 49, and cases there cited.

This section, so far as it relates to the time for filing, is merely directory. People ex rel. Cahoon et al. agt. Dodge, Judge, &c., 5 How. 47.

§ 268. For the purposes of an appeal, either party may ex- Exceptions cept to a decision on a matter of law arising upon such trial, when within ten days after notice in writing, of the judgment, in the same manner,

and with the same effect as upon a trial by Amended jury. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a bill of exceptions or case containing so much of the evidence and such exceptions as may be material to the question to be raised. The bill of exceptions or case shall be settled as provided by the rules of the court, and the

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judge in settling such case shall briefly specify the facts found by him and his conclusions of law.

Where a party moves for a new trial upon a bill of exceptions, he must rely upon the grounds taken, and the points made by him upon the trial, and upon those only. Staring vs. Bowen, 6 Barb. 109.

Where it is sought to review causes commenced before the code took ef. fect, such review must be had under the old law. Scott vs. Becker and others, 3 How. 373. Doty vs. Brown, id. 375; Clarke agt. Crandall, 4 How. 127.

On filing the decision, judgment may be entered immediately. There is no implied stay of proceedings to make a case. Lynde vs. Cowenhoven, 4 How. 327.

The old practice of moving on a case or bill of exceptions, and all the proceedings to obtain a review, are still in force. Thompson vs. Blanchard, 4 How. 260; S. C. 3 How. 399.

Without a stipulation at the trial, a case cannot be turned into a bill of exceptions or special verdict, after judgment of the Supreme Court. Smith and others vs. Caswell, 4 How. 286.

A bill of exceptions should give a plain and concise statement of the facts out of which the questions of law arise. Price vs. Powell, 3 Com. 322.

Where any exception is taken at the trial, the party may make a case, presenting such exception. Huff vs. Bennett, 2 Sand. 703.

The object of a case, made by a party desiring a review upon the evidence appearing on the trial before a referee, is to enable the appellant to call in question the facts stated by the referee in his report. Wilson, re. ceiver, &c., vs. Allen and others, 6 Barb, 542.

6 See Supreme Court Rules, 15, 19, 20, 21, 24, 27, and sectiou 272 and notes.

§ 269. [Sec. 224.] On a judgment for the plaintiff upon an judgment issue of law, the plaintiff may proceed in the manner prescribed

by the first two sub-divisions of section two hundred and fortyAmended six, upon the failure of the defendant to answer, where the sum1849, 1851.

mons was personally served. If judgment be for the defendant, upon an issue of law, and if taking of an account, or the proof of any fact, be necessary to enable the court to complete the judgment, a reference or assessment by a jury may be ordered, as in that section provided.

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Proceed

on issue of law.

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