Gatling v. Newell
| Decision Date | 26 May 1859 |
| Parties | Gatling v. Newell and Another |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
The judgment is affirmed with 1 per cent. damages and costs.
W. Z Stuart and J. A. Liston, for appellant.
Mr Stuart made the following argument:
The points to which the present submission is confined are those arising on the fourth and fifth bills of exceptions taken during the progress of the trial below.
The other points raised in the cause, and determined when heretofore submitted, the Court has decided to be closed. That decision, if it was rightly apprehended, is, that a rehearing is granted only to the party petitioning for it and then only as to the points specifically made in the petition, or as to some one or more of them; and that the word "case," as used in the fourth rule, means the case made in the petition for a rehearing, not the "case" as originally presented on the first submission. All other points made and determined on the original submission, to which no petition for a rehearing was addressed in proper time by either party, the Court regard as definitely settled.
The application of this novel construction of the rule has operated with extreme hardship upon the appellant. It is believed that this has not hitherto been the practice of the Court. It is believed that in the few instances in which a rehearing has been granted, it operated like a new trial to open the whole case.
Still we are not understood as complaining of the rule. As to all such rules of practice it is not very material what they are so that their application be uniform All that the profession can ask is, that the practice which has grown up for forty years under the rules shall be adhered to as a proper exposition; and that all new readings of old rules, or any modifications of them, should be promulgated before they are applied.
The effect of the decision alluded to on Gatling's case is that because he did not petition for a rehearing on the points decided against him within sixty days, he is therefore concluded as to those points, though a rehearing was granted to the opposite party.
We may be permitted respectfully to suggest, that for a party in whose favor a case had been reversed to petition for a rehearing, would look a little awkward. Would not such a petition seem like an attempt to trifle with the time and patience of the Court? This Court has never listened with much indulgence to a petition for a rehearing in any case--not even when preferred by the party against whom the case was decided. There must be a remarkable change in the judicial mind, if this Court would look complacently on a petition for a rehearing from the party in whose favor the case had been reversed. Such petitions are always felt to be an imputation on the care, diligence and learning of the Court. As such they were regarded in The Slate v Vincennes Uniaersity, 5 Ind. 77; Greencastle Township v. Black, id. 557, and many others which might be cited. In many of these cases, accordingly, the petitioner, though he was the party against whom the decision was made, was yet handled without gloves for his presumption.
But if such is the rule, so be it. The construction given to-day against us, may serve our turn to-morrow.
It is presumed that if there were other points made on the former submissions, but not passed upon by the Court in either of the decisions reported in 7 Ind. 147, or 9 Ind. 572, these points thus undetermined must also remain open questions under this submission.
The burden of the fourth and fifth bills of exceptions is, the error of the Court below in excluding certain evidence. To understand the application and force of the excluded evidence, it will be necessary to keep in mind what was to be tried. To this end let us inquire briefly:
1. What were the issues joined between the parties?
2. What did the trial by the Court embrace? Was it one or all these issues?
3. Was the rejected evidence pertinent and relevant to any one or more of these issues?
If the evidence rejected was pertinent and relevant to any one of these issues, then we take it to be clear that the Court below erred in rejecting it; and that the former decision of this Court, reported in 9 Ind. 572, reversing the case for that cause, should be adhered to.
It is believed that the answers to those inquiries will substantially embrace every matter in controversy, and every collateral consideration properly connected with the case under this submission, as limited by the Court.
Before proceeding to the examination of the inquiries suggested, a few things may be pertinently premised.
1. The decision in 9 Ind. reversing this case, was the unanimous opinion of the Court, as then constituted, as to the point on which it was reversed. Were the Court now constituted as it then was, it would not be necessary, nor perhaps proper, to allude to the case in detail, either as to law or fact. In such case, the discussion might properly be limited to the specified bills of exceptions.
As the Court is now constituted, it is different. The new judges cannot be expected to fully appreciate these isolated points, without carefully considering the whole case, and the relations of the open questions to those that are closed. In other words, in granting the rehearing, the new judges have assumed the task of making themselves fully masters of the allegations and proofs. This, it is not doubted, they will do.
2. It is further suggested that in trials by the Court, a wider range is usually indulged in the admission of evidence than in trials by jury. And the reason is obvious. After the case is all heard, the single mind of the Court, trained to such inquiries, can more easily separate the relevant from the irrelevant evidence, than can the varied and clashing views of twelve jurymen, unused to the application of legal principles. Hence, as to the admission of evidence to a Court or to a jury, there is an obvious and just distinction. The one can separate the wheat from the chaff; the other cannot. In trials by the Court, it is, therefore, quite immaterial what evidence is adduced; and it is usually so treated in practice. The Court briefly says, we will hear the evidence and determine its relevancy hereafter.
But the same considerations do not apply to the exclusion of evidence. If evidence is excluded, it has, of course, no effect on the mind of the jury, or of the Court sitting as a jury. The theory is, that the one mind or the twelve minds pass only upon what is judicially submitted to them as evidence. The excluded evidence is entirely lost sight of. However pertinent or important it may, in fact, be, or however improperly or unjustly excluded, it still has no influence whatever on the decision.
Hence, as to material evidence which is excluded, it can make no difference whether the Court excludes it from the jury, or from itself sitting as a jury. It is equally error--equally prejudicial to the party against whom the exclusion is made.
3. In the third place, it may be further suggested, that this case has had a singular judicial history.
When it first came to this Court, it may be said to have come in at the back door. It is reported in 7 Ind. 147. It will be seen that, according to the rules and established practice of the Court, it was not entitled to any consideration. It was not judicially before the Supreme Court. There was no final judgment from which an appeal would lie. Repeatedly--nay, it may be better stated invariably--had cases been dismissed which were thus prematurely brought to this Court. The judgment appealed from was a mere judgment or demurrer as to the sufficiency of a part of the complaint. It did not decide the whole case. The complaint was held insufficient for a rescission, but sufficient for the recovery of damages. On this last branch of the case, there was no issue, trial, or judgment whatever. Hence, there was no final judgment; and from such only an appeal lies to this Court. 2 R. S. p. 158. The jurisdiction of the Supreme Court is wholly statutory; and where jurisdiction is not expressly given, it is not possessed. The principle has been repeatedly recognized in this Court, in the following among other cases: Chandler v. Swisher, 2 Ind. 222; Bradley v. Bearss, 4 id. 186; Fobes v. Martin, 5 id. 452; Branham v. The Fort Wayne, &c., R. Co., 7 id. 524; Shroyer v. Lawrence, 9 id. 322; French v. Lighty, id. 475.
Even in this very case, in 7 Ind. supra, the Court says: "The cause has not been brought to a final hearing on the merits, but only to the point where the Court below ruled that the plaintiff could not have a rescission." And again:--"The cause is not at present properly before us, and ought not to be here."
Yet it was, with great reluctance on the part of the Court, considered and sent back reversed. The argument tenaciously urged for that course was, that the appellees only wanted a fair trial on the merits.
This reversal was clearly a gross departure from both principle and practice, to the prejudice of the appellant.
Judge Bryant, trammeled by that decision of the Supreme Court, rescinded the contract; and on appeal by Gatling, this Court say,
But the lower Court excluded certain evidence which should have been admitted. For that error the case is reversed. The appellees petition for and obtain a rehearing. The appellant objects, but fails to file a formal petition for a rehearing in sixty days. This, the Court holds, concludes the appellant on the points decided against him--thus holding the latter to the strictest rules of the legal game.
We do not complain of this. Yet, as the appellees had...
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