Prunty v. Mitchell
| Decision Date | 18 April 1878 |
| Court | Virginia Supreme Court |
| Parties | PRUNTY v. MITCHELL & COBBS. |
P brings assumpsit against M, who pleads non-assumpsit, on which issue is made up, and on the trial there is a verdict for P. M then asks for a new trial and the court grants it on the condition that M shall pay the costs of the first trial, and agree that upon any future trial of the cause it shall be tried solely upon the issue already made up, without any additional plea; and to this M assents. The case is then sent to another court, and on the motion of M he is permitted to file another plea; to which P excepts. There is a judgment for M, and a writ of error by P--HELD:
1. It was competent for the court to grant the new trial upon the condition stated. If M objected to the condition, he should have excepted and spread the facts upon the record. Having accepted the condition, he is bound by his acceptance.
2. If the same court who heard the evidence on the first trial and granted the new trial on condition might, at a subsequent term, have dispensed with it and have admitted another plea certainly no other court could do so.
3. In reviewing the judgment, the cause will be sent back to be tried upon the issue on the plea of non-assumpsit, or any matter which has occurred since the new trial was granted, and which is proper and sufficient to be pleaded puis darrein continuance.
In April, 1868, Jesse Prunty brought an action of assumpsit in the circuit court of Pittsylvania against Mitchell & Cobbs, partners. At the June term of the court they appeared by their attorneys and filed the plea of non-assumpsit, on which issue was made up. At a special term held in July, 1870, the case was tried, and there was a verdict and judgment in favor of the plaintiff for $1,092.94, with interest from the 13th of June, 1867. At the same term of the court the defendants moved the court for a new trial, on the ground of surprise. Cobbs filed his affidavit, saying he was absent at the trial, and thought the case had been continued until the next regular term of the court; and he gave the names of witnesses who would prove facts material to the defence, stating what facts they would prove. And Mitchell filed his affidavit, stating that both Cobbs and himself were bankrupts, and he supposed that the suit would be revived in the name of the assignee, and he would attend to it; and he concurred in the facts stated by Cobbs.
The court granted the new trial upon condition that the defendants should pay the costs of the trial which had been had, and agree that upon any future trial of the cause it should be tried solely upon the issue already made up without any additional plea; and the defendants agreed to the said condition.
The court then sent the case to the county court of Pittsylvania. And at the June term, 1871, of that court the defendants tendered their pleas of discharge in bankruptcy; which were objected to by the plaintiff. But the court admitted the pleas, and the plaintiff excepted.
The plaintiff then moved the court to enter up a judgment on the verdict of the jury, but the court overruled the motion; and the plaintiff excepted. He then took issue upon the pleas in bankruptcy, and by consent a jury was waived, and the court rendered a judgment for the defendants. The plaintiff then took an appeal to the circuit court of Pittsylvania, and the judge of that court deeming it was improper for him to sit in the case, it was removed to the circuit court of the city of Richmond; and at the February term, 1873, of that court the judgment of the county court of Pittsylvania was affirmed. And thereupon Prunty applied to this court for a writ of error; which was allowed.
W. W. Henry, for the appellant.
William M. Tredway, Jr., for the appellee.
This cause is brought here by the plaintiff in error, who was also plaintiff below, by writ of error to the judgment of the circuit court of Richmond affirming the judgment of the county court of Pittsylvania. The cause was first tried in the circuit court of Pittsylvania upon an issue of non-assumpsit, which was the only issue. The jury rendered a verdict for $1,092.94, with interest, for which there was judgment. Upon motion of the defendants, " the court ordered that the said verdict and judgment should be set aside and a new trial granted the defendants, upon condition that they would pay costs of this trial, and agree that upon any future trial of this cause, it should be tried solely upon the issue already made up, without any additional plea; and thereupon the defendants agreed to said conditions, and the said verdict and judgment were accordingly set aside and a new trial granted." At a subsequent day the cause was removed to the county court of Pittsylvania county.
The court is of opinion that the judge of the circuit court had the power, in the exercise of a sound discretion, to restrict the new trial to a particular issue, and consequently to the issue which had been made in the first trial, and to grant the new trial upon the conditions recited. Other terms than the payment of costs may be imposed on the party applying for a new trial. The new trial may be limited to a single point. Hilliard on New Trials, 2d edition, p. 68, citing Lainey v. Bradford, 4 Rich. R. 1. The practice of granting a new trial after judgment as to part, and letting the judgment stand for the residue of the demand sued for, although sometimes questioned, is held to have been too long sanctioned now to be disturbed. Ibid., citing Edwards v. Lewis, 18 Alab. R. 494. A new trial may be ordered upon a particular question without reopening the whole case. Ibid., p. 69, citing Thwaites v. Sainsbury, 7 Bing. R. 437, where the new trial was ordered, but upon conditions of payment of costs, bringing into court the sum claimed, and restricting the second trial to a single point.
In Graham & Waterman on New Trials, Vol. I, p. 604, the author says: " The terms imposed on setting aside verdicts, in addition to costs, may be divided into ordinary and extraordinary. " " The extraordinary terms arise out of the merits of the case the relative situation of the parties, the probable consequences of delay, the advantage or disadvantage which may result to...
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