O'grady v. Supple

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: [20 N.E. 115] MORTON, C.J.
• Citation: O'grady v. Supple, 148 Mass. 522, 20 N.E. 114 (Mass. 1889)
• Decision Date: 28 February 1889
• Parties: O'GRADY v. SUPPLE.

148 Mass. 522

20 N.E. 114

O'GRADY v. SUPPLE.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1889

COUNSEL

T.E. Barry and T.F. Strange, for plaintiff.

J.W O'Brien, for defendant.

OPINION

MORTON, C.J.

We do not understand that the ruling was, as contended by the plaintiff, that in a jury-waived case the judge, after his decision, and before judgment in fact, has no power to set aside his finding of the facts, and order a new trial, if he is satisfied that he has erred. The question before the judge was not as to the power of the judge, but as to the right of the plaintiff to be heard upon a motion for a new trial upon the ground that the finding of the judge was against the evidence and the weight of the evidence. The ruling was, in substance, that the plaintiff could not as matter of right be heard upon a motion for a new trial upon this ground. We think this ruling was correct. The statute provides that "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." Pub.St. c. 153, § 6. But a subsequent provision of statute limits the right to move for a new trial in cases tried by the court without a jury. It provides that in such cases either party "may move for a new trial for mistake of law or for newly-discovered evidence, and may be entitled to review, in the same manner and with the same effect as upon trial by jury." Pub.St. c. 167, § 70. The expression of two grounds for a new trial raises the implication that...