Kearney v. Snodgrass

• Court: Oregon Supreme Court
• Writing for the Court: WALDO, C.J.
• Citation: Kearney v. Snodgrass, 12 Or. 311, 7 P. 309 (Or. 1885)
• Decision Date: 03 June 1885
• Parties: KEARNEY v. SNODGRASS and others.

7 P. 309

12 Or. 311

KEARNEY v. SNODGRASS and others.

Supreme Court of Oregon

June 3, 1885

Appeal from Umatilla county.

R Williams, for appellant.

W. Lair Hill and H.Y. Thompson, for respondents.

WALDO C.J.

This case is before us on a petition for a rehearing. The action was brought against Foster, Reeves, Snodgrass, and Minor, as partners and principals, and R.G. Thompson as surety, on a promissory note executed by Foster in the name of the partnership, Foster, Reeves & Co., and signed by R.G Thompson as surety. Snodgrass and Minor, the appellants here, denied the complaint. They also set up as a separate defense that the note was given in execution of a contract made by Foster & Reeves with the plaintiff, to which contract they were and are strangers, and they also set up what they claim to have been the actual business relations between the alleged partners, which did not extend to the transaction in question. The so-called separate defense was, doubtless immaterial, and might have been stricken out on motion.

When the case was first before us we examined it, in effect, as if it were before us on a motion for a new trial. The case is in fact, here on a bill of exceptions, on appeal, as a substitute for a writ of error. The distinction is important. In the latter case we have nothing to do with the merits of the verdict, or with the evidence as a whole, which has been set out in full in the transcript. Only so much of the testimony should be put into a bill of exceptions as is necessary to explain the exceptions taken. Johnston v. Jones, 1 Black, 220. At the same time, the record should show the relevancy of the exception to the issue. Hughes v. Parker, 1 Port. 141.

No writ of error lay at common law, or under the statute of Edw. I., to the decision on a motion for a new trial. "A new trial," says TUCKER, J., in Kinney v. Beverly, 2 Hen. & M. 327, "is only a new invention introduced on account of the severity of the judgment of attaint, to avoid which it was thought best to proceed in a milder way, and so new trials were introduced." "An application for a new trial was not a matter of right. It was granted ex gr., to prevent a failure of justice." GIBSON, C.J., said that a writ of error founded on a mistake of the jury in deciding facts would be a novelty in our jurisprudence, ( Burd v. Dansdale, 2 Bin. 90;) or, as he expressed it in Sidwell v. Evans, 1 Penr. & W. 383, S.C. 21 Amer.Dec. 387, it is not the business of the court on a bill of exceptions to judge of the quantum of proof, or to correct the errors of the jury. A "bill of exceptions," as the very expression shows, must contain exceptions. U.S. v. Jarvis, 3 Wood. & M.C.C. 225. But an exception lay only for some error of law occurring at the trial. Onondaga Ins. Co. v. Minard, 2 N.Y. 98; Walton v. U.S. 9 Wheat. 657; Doddridge v. Gaines, 1 McArthur, 339. This definition has been incorporated into our civil procedure act. Gen.Laws Or. 151, § 227. A motion for a new trial was made after verdict and before judgment, and hence no exception lay to any ruling made on such motion. The reason arose out of the nature of a motion for a new trial itself, in which the cardinal object was not to correct the errors of the court, but of the jury. The first reported case where a new trial was granted, ( Wood v. Gunston, Styles, 466,) in the time of the Protectorate, was to give a second jury the opportunity to correct an error of the first. GLYN, C.J., said in that case that it was for "the people's benefit" that new trials should sometimes be had. But he seems not to have forgotten that the power might easily be exercised to their detriment. The discretion of courts has sometimes been called the law of tyrants.

Lord KENYON said, in Calcraft v. Gibbs, 5 Term R. 20, that an application for a new trial was a direct appeal to the laws and justice of the country, and could not be tried and disposed of on any other rule. So, in Rex v. Mawbey, 6 Term R. 638, he said: "I think the rule was correctly stated by the counsel for the defendants, that in granting new trials the court knew no limitations except in some excepted cases; but they will either grant or refuse a new trial as will tend to the advancement of justice."

And see BULLER, J., Wilkinson v. Payne, 4 Term R. 468; AMHURST, J., Edmondson v. Machell, 2 Term R. 5; Lord MANSFIELD, Bright v. Eynon, 1 Burr. 393; Hewitt v. Jones, 72 Ill. 218. So it is said in Smith v. Brampston, 2 Salk. 644, note, that where complete and substantial justice has been done, a new trial will not be granted, though the judge who tried the case may have been mistaken in point of law; nor will the court give a second chance to an unanswerable defense, though the verdict be against the weight of evidence and the strict rule of law. In McLanahan v. Universal Ins. Co. 1 Pet. 183, Mr. Justice STORY said:

"It is to be considered that these points do not come before this court on a motion for a new trial after verdict, addressing itself to the sound discretion of the court. In such cases the whole evidence is examined with minute care, and the inferences which a jury might properly draw from it are adopted by the court itself. If, therefore, upon the whole case, justice has been done between the parties, and the verdict is substantially right, no new trial will be granted, although there may have been some mistakes committed at the trial. The reason is that the application is not matter of absolute right in the party, but rests in the judgment of the court, and is to be granted only when it is in furtherance of substantial justice. The case is far different upon a writ of error, bringing the proceedings at the trial, by a bill of exceptions, to the cognizance of the appellate court. The directions of the court must then stand or fall upon their own intrinsic propriety as matter of law."

The practice in England in regard to new trials seems to have been, when the trial was at nisi prius, to get leave of the judge who presided at the trial to move for a new trial. If leave were granted, the motion was heard on the judge's report before court in bank at Westminster, and the decision was final. Miller v. Baker, 20 Pick. 285; Johnson v. Macon, 1 Wash. (Va.) 5.

There is no express provision in our Code of Civil Procedure for the review of the decision of a circuit court on a motion for a new trial. The Code has defined an exception, which must be taken before verdict. A bill of "exceptions," therefore, will not lie more than at common law. An appeal may be taken from an order affecting a substantial right, and which, in effect, determines the action so as to prevent a judgment. Section 525. An order denying a new trial does not affect a substantial right. Until the right of appeal is created by statute it does not exist as a strict legal right, nor does it determine the action so as to prevent a judgment. So it is not a final order under the same section, affecting a substantial right, or made in a proceeding after judgment. Such an order is not made after judgment. The motion suspends the judgment. Truett v. Legg, 32 Md. 149; Page v. Cole, 123 Mass. 93. It is not an intermediate order involving the merits of the action under section 535. See opinion of SELDEN, J., St. John v. West, 4 How. Pr. 332. Title 8, Gen.Laws Or. p. 152, provides for what causes a verdict may be set aside and a new trial granted. Every cause mentioned depends on a question of fact except the last, and certain cases, probably, under the first subdivision. The sufficiency of the evidence under the sixth subdivision is a question of fact, though whether there be any evidence is a question of law. BULLER, J., Carpenter's Co. v. Hayward, 1 Doug. 375.

It has been expressly decided by this court that an appeal will not lie in such cases from a decision on a question of fact. Thus BOISE, J., in State v. Fitzhugh, 2 Or. 236, said:

"As to those matters which were contained in the affidavits filed in support of the motion for a new trial, they were questions of fact, and were addressed to the sound discretion of the circuit court, and are, therefore, not the subject of review here."

And in Hallock v. Portland, 8 Or. 29, PRIM, J., said:

"As the motion for a new trial was founded wholly upon the insufficiency of the evidence to justify the finding of fact, the granting the motion was a matter resting wholly in the discretion of the court below, and cannot be reviewed on appeal."

In Massachusetts there is a statute providing that exceptions may be taken to the opinion, ruling, direction, or judgment given or made on a motion for a new trial. The matters of law referred to seem to have been other than those available on a bill of exceptions. But it is there held that a motion for a new trial, so far as it depends on a question of fact, is addressed exclusively to the discretion of the presiding judge. Doyle v. Dixon, 97 Mass. 213. Hence no appeal lies from a decision on a motion for a new trial on the ground of newly-discovered evidence, or insufficiency of the evidence to justify the verdict, or that the damages are excessive, or on any other question of fact. Shea v Lawrence, 1 Allen, 170; Lowell Gas-light Co. v. Bean, Id. 274; Merritt v. Morse, 113 Mass. 271; Norton v. Wilbur, 5 Gray, 7; Kidney v. Richards, 10 Allen, 419; Hubbard v. Gale, 105 Mass. 511. Now, if there be no appeal under title 8, p. 152, Gen.Laws Or., from decisions on motions for new trials on questions of fact, as has been decided, for the same reason there is none on questions of law,--because the statute does not give it. For most, if not all, the errors of law mentioned in that title there is a remedy on appeal from the judgment or final order. But if a party choose to move for a new trial in the court below...