Ellis v. Ginsburg

• Decision Date: 28 February 1895
• Citation: 39 N.E. 800,163 Mass. 143
• Parties: ELLIS v. GINSBURG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 143

39 N.E. 800

ELLIS v. GINSBURG.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1895

COUNSEL

H.E. Warner, for plaintiff.

J.H Appleton and P.H. Cooney, for defendant.

OPINION

BARKER J.

The record before us shows abundant power in the justice of the superior court to set aside the verdict, and to order a new trial. Under Pub.St. c. 153, § 6, "the courts may at any time before judgment in a civil action set aside the verdict and order a new trial for any cause for which a new trial may by law be granted." This power may be exercised by the court of its own motion, and while, in acting upon motions for a new trial made by parties to the cause, the court must conform to the rules of the court and to the settled principles of law, the pendency of a motion for a new trial made by a party to the cause does not annul or suspend the power of the court upon its own motion to set aside the verdict, and order a new trial, for any cause for which a new trial may by law be granted. So, in the present case assuming that the court could not grant the defendant's motion to set aside the verdict because contrary to the evidence, for the reason that rule 46 had not been complied with, and that it could not grant the defendant's motion to set aside the verdict because of newly-discovered evidence, for the reasons that the evidence was not in the legal sense newly discovered or was cumulative or was in contradiction of the defendant and his other witnesses, or because the failure to produce it at the trial was not accounted for or excused, or for other like reasons nevertheless, if, in dealing with those motions, the court became convinced that legal grounds existed for ordering a new trial, and did, for that reason alone, set the verdict aside, and order a new trial, he was justified in so doing upon his own motion; and, if he had evidence before him from which he could find facts which made a "cause for which a new trial may by law be granted," it is immaterial how he may have ruled in answer to the requests made in the hearing of the defendant's motions. A new trial may by law be granted where the court "is satisfied that, by reason of some accident, mistake, or misfortune in the conduct of the trial, a new trial is necessary to prevent a failure of justice." Greene v. Farlowe, 138 Mass. 146; Cutler v. Rice, 14 Pick. 494; De Giou v. Dover, 2 Anstr. 517; Richardson v. Fisher, 1...