Bartling v. Jamison

• Decision Date: 31 March 1869
• Citation: 44 Mo. 141
• Parties: JOHN BARTLING, Petitioner, v. WM. C. JAMISON and JOSEPH VASTINE, Respondents.
• Court: Missouri Supreme Court

44 Mo. 141

JOHN BARTLING, Petitioner,

v.WM. C. JAMISON and JOSEPH VASTINE, Respondents.

Supreme Court of Missouri.

March Term, 1869.

Application for writ of prohibition.

N. A. Mortell, and Harding, for petitioner.

I. The Legislature intended to confer no more right or power upon the Probate Court to grant a new trial than upon a justice of the peace. (Gen. Stat. 1865, §§ 2, 8, p. 514; 1 Mo. 539; 8 Mo. 45; Gen. Stat. 1865, § 17, p. 713.) No rule of the probate judge is regarded. No error is charged. The circuit judge, on appeal to the Circuit Court, simply proceeds to try the case anew, and makes and completes a record for the District and Supreme Courts. The ecclesiastical and chancery courts had unquestioned right to grant a new trial, but they made and completed the record, and in the appellate court their proceedings were not tried de novo; the errors and rulings of the judge were considered in the appellate court as they appeared upon the record or bill of exceptions. (Chit. Blackst., book III, § 411, p. 318.)

II. The authorities on the incidental powers of courts of record are foreign to the judicial system of this State and to the relation existing between the Probate Court and Circuit Court. The inherent power of a court of common-law jurisdiction is not granted courts of limited jurisdiction.Lackland & Martin, for respondents.

The power of granting new trials grew up in the English courts. It has been exercised by them from the earliest times, and does not depend upon statutes. (Graham & Waterman on New Trials, 2; Tidd's Pr. 904; 1 Burr. 394.) The granting of a new trial, like the granting of a continuance, rests in the discretion of the court. (Gray v. Bridge, 11 Pick. 189.) “To all courts acting on the principles of the common law the power is incident to grant new trials, unless prohibited by positive law.” (Bartholomew v. Clark, 1 Conn. 472.) Admitting that our Probate Court inherits its method of proceeding from the chancery courts and ecclesiastical courts, there is nothing in this admission against the right to grant a new trial; the right to try an issue by a jury, it did not acquire from those courts. It is a common-law right, not conferred by statute, and it should carry with it the incidents of trial by jury. The chancery and ecclesiastical courts proceeded according to the method of the civil law. They had no such things as juries or jury trials. (3 Blackst. Com. 100.) “Their decisions may be the subject of a re-hearing or appeal by any party who considers himself aggrieved by it.” (2 Dan. Ch. Pr. 1543, 1540; Hunter v. Marlboro, 2 Wood. & Minot, 168; Cargill v. Spence, 2 Hag. Ecc. Sup. 146; Donellan v. Donellan, 2 id. 144; Henley v. Morrison, 2 id. 147; Webb v. Webb, 1 id. 349; Shaunessey v. Allen, 1 Lee, 9.) Our Probate Court is a court of record. (Gen. Stat. 1865, § 5, p. 900.) It has terms. It is vested with the common-law right of trial by jury. ( Id. § 10, p. 190.) Although the Surrogate's Court of New York is not a court of record (Dayton's Sur. 6), yet the right to open and set aside judgments and decrees is recognized as incident to the power to make them. (Sipperly v. Baucus, 24 N. Y. 46; Harrison v. McMahon, 1 Bradf. 283.) The power is incident to a jury trial in a court of record, where the jury are to decide the facts, and are not judges of the law.

BLISS, Judge, delivered the opinion of the court.

John Bartling presents to this court his petition setting forth that upon information of W. C. Jamison, as administrator of estate of Edgar J. Noe, a citation was issued against him by Joseph P. Vastine, Judge of the Probate Court of St. Louis county, for the discovery of concealed property belonging to said estate. The charge was that he had concealed and embezzled a solitaire diamond ring, and the person so charged, the applican for this writ, appeared and claimed that the ring was presented to him by deceased; and upon trial by jury the verdict was in his favor. The administrator applied for a new trial, which was granted by the Probate Court; and before the second trial the petitioner applies to this court for a writ of prohibition, claiming our protection from an exercise of an illegal power on the part of the court.

The proceeding in the Probate Court was instituted under sections 7-11, ch. 121, General Statutes, and the application raises the question whether the Probate Court has power to set aside verdicts of juries in the few cases where jury trials are provided in that court, and grant a new trial upon the merits. It is claimed on behalf of the respondents that this right is incident to all courts of record; that it exists independent of any statute, and that probate courts and county courts should be held to possess it unless it is expressly prohibited. On the other hand, the petition is founded upon the theory that the right of courts to review the verdict of juries is regulated, in Missouri, by statute; that this right may be exercised once in the Circuit Court, but is nowhere granted in the proceeding in question, and that the only new trial that can be obtained is upon appeal, under the provisions of chapter 127 of the Generla Statutes.

That courts of general common-law jurisdiction have the right to review and set aside the verdict of a jury found in its own court, and grant a new trial, has been maintained for some two hundred years, though its...