Bissell v. Dickerson

• Decision Date: 19 February 1894
• Citation: 64 Conn. 61,29 A. 226
• Parties: BISSELL v. DICKERSON.
• Court: Connecticut Supreme Court

29 A. 226

64 Conn. 61

BISSELL

v. DICKERSON.

Supreme Court of Errors of Connecticut.

Feb. 19, 1894.

Appeal from city court of Hartford; McManus, Judge.

Action by Thomas H. Bissell against Josephine L. Dickerson on a promissory note for $100, indorsed by the payee to the plaintiff. There was a verdict for plaintiff for $25, and he appealed. On an oral motion by plaintiff for a new trial on the ground that the verdict was against the evidence, the evidence was made part of the record, and the trial court certified that in its opinion, the jury were not justified by the evidence in returning a verdict for the plaintiff for less than $80; and the case was reserved for the advice of the supreme court of errors on questions arising on a rule to show cause why a new trial should not be granted because the verdict was against the evidence. Reversed on plaintiff's appeal.

The defense interposed was that defendant executed the note to the payee as an accommodation, that the latter obtained it by fraud, and that plaintiff had knowledge of such facts before he purchased the note. The court charged the jury that, if they found for plaintiff, they should find for the amount he paid for the note, and refused to charge that, if plaintiff was a bona fide purchaser, he was entitled to recover the full amount of the note, with interest from maturity, whether the note, as between the maker and payee, was fraudulent or not.

Cooke Lounsbury, for appellant. Sidney E. Clarke, for appellee.

BALDWIN, J. This case comes before us on a reservation for our advice as to the granting of a new trial on the ground that the verdict was against the evidence, and also on an appeal by the plaintiff, assigning error in the charge to the jury. The advice to be given depends on the construction and effect of chapter 51 of the Public Acts of 1893, and involves a consideration of the question whether, since its enactment, trial courts have power, as at common law, to set aside verdicts which, in their opinion, are manifestly against the weight of evidence. Such a power was given, as early as 1644, to the "particular court" of the colony, then the ordinary tribunal for the trial of civil causes. In the first revision of our colonial statutes (the "Code of 1650") it is vested in the particular court in the following terms: "And it is further ordered, that the courte of magistrates shall haue libbertye (if they doe not find in their judgments, the jury to haue attended the evidence giuen in, and true issue of the case, in theire verdict,) to cause them to returne to a second consideration thereof; and if they still persist in theire former opinion, to the dissatisfaction of the courte, it shall be in the power of the courte to impannell another jurye, and committ the consideration of the case to them." 1 Colonial Records Conn. 536. In 1666, the year after the grant of the charter, the colony was divided into counties, each of which was supplied with a county court, invested with substantially the same powers, in ordinary civil causes, as those formerly enjoyed by the "particular court." A "court of assistants" was also created, with jurisdiction, among other things, of appeals from the county courts. In 1694 the right of trial courts to set aside verdicts as contrary to the weight of evidence was taken away. In lieu of this, two remedies were provided,—by appeal, and by what was called a "review." Any party against whom a verdict was rendered could, notwithstanding judgment was entered upon it, review it by a new "process" in the same court, where the cause was thereupon tried de novo before another jury. This system, as set out in the Revision of 1702 (page 3), gave an appeal from any judgment of the county court to the court of assistants, or, at the election of the party, a review. If either party was dissatisfied with the judgment on such a review, he could appeal to the next court of assistants, where the matter was to be finally disposed of. If, on an appeal to the court of assistants, taken from a judgment of the county court rendered upon a first trial, either party was dissatisfied with the result, he could review it by a new process in the appellate court. In 1709, by "An Act for restraining the liberty of three tryals, in some actions and cases," these provisions were so modified that, whenever there were two trials in the same court with the same result, the second judgment should end the case forever; but "in all actions and causes wherein the plaintiff upon the first trial by the bench and jury shall recover judgment, and the defendant upon the second trial by the bench and jury shall recover judgment, there shall be Liberty of another or third trial, by Appeal or Review, as formerly." Sess. Laws 1709, p. 150. The power of the court, if dissatisfied with a verdict, to send the jury back for a further consideration, was stated in the Revision of 1702 (page 3) In the form which is still retained in Gen. St. § 1104. In 1762 a statute was passed which worked important changes in our methods of judicial procedure. The general assembly made over its jurisdiction as to granting new trials, in ordinary cases, to the superior and county courts, respectively, and the process of review was abolished. St. 1769, p. 307. The provisions of this act as to new trials, with no substantial change of terms except an extension of the right of granting them to district and city courts, are still in force, and are thus given in the general statutes: "Sec 1125. The superior court, court of common pleas, district court, and any city court, may grant new trials of causes that may come before them respectively, for mispleading; the discovery of new evidence; want of actual notice of the suit to any defendant, or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed; or other reasonable cause, according to the usual rules in such cases." This statute, when originally passed, had the effect of greatly restricting the remedy of a new trial. Previously it could be demanded as an absolute right by any party, plaintiff or defendant, who was dissatisfied with the verdict. Henceforth a new trial could be had only when the court was dissatisfied with the verdict, and for a cause recognized as sufficient at common law.

The construction of the act, as respects the particular subject of verdicts against evidence, was first brought under discussion in this court in 1816. The losing party in a case in the superior court had filed a motion for a new trial on the ground that the verdict was against the evidence, and that court thereupon, without stating what the evidence was, had simply reserved for the opinion of this court the question whether it (the trial court) had the legal power to grant the motion. At that time, under the general rules of practice adopted in 1807 (3 Day, 28), the superior court could either dispose finally of motions for a new trial, or, at its discretion, reserve them for the opinion of this court. The opinion in the case was delivered by Chief Justice Swift, and affirmed the right of the superior court to grant the motion. It states the law on the point under examination in these terms: "To all courts acting on the principles of the common law the power is incidental to grant new trials for various causes, among which one is that the verdict was against evidence. This has ever been done in England, as well as in sundry states in the Union. Courts in this state, then, acting according to the common law, have this power, unless prohibited by positive law. The statute respecting this subject authorizes courts to grant new trials 'for mispleading, discovery of new evidence, or other reasonable cause, according to the common and usual rules and methods in such cases.' This is so far from being a prohibition, it may be considered as conferring a power to grant new trials where the verdict is against evidence, for this comes clearly within the expression, 'for reasonable cause, according to the common rules.' It would seem clear, both by the common and statute law, our courts possess this power. It has been supposed, from the power of the court to return the jury to a second and third consideration, the necessary implication is that they shall have no further control of the verdict, and that, in those countries where new trials are granted on the ground that the verdict is against evidence, the courts have no such power. But there is no inconsistency or impropriety in the exercise of both these powers, and it may often happen that a new trial is rendered unnecessary by returning the jury to a further consideration where the verdict is wrong." Bartholomew v. Clark, 1 Conn. 472, 480.

In the Revision of 1821 a special provision was introduced as to the remedy for verdicts against evidence rendered in the superior court, which was designed, as stated by the revisors (Revision 1821, p. 54, note), to confirm and modify the practice sanctioned in Bartholomew v. Clark. This statute, while leaving the powers of the county court unaffected, authorized the superior court, if of opinion that a verdict was against evidence, to report a statement of the evidence to this court, which could thereupon, if of the same opinion, grant a new trial. There was an absolute right of appeal in most cases from judgments of the county court to the superior court, so that if a verdict were set aside without due cause by the former, and a contrary verdict afterwards rendered in the cause, the losing party could secure a new trial in the latter tribunal. No change was made in this law until after the county courts had been replaced by courts of common pleas, when, in the Revision of 1875 (page 448), it was made applicable alike to the superior court, court of common pleas, district court, and city courts, and the power to grant the new trial was given in each case to such court as would have jurisdiction of a writ of error from a judgment...