Sweeney v. Jarvis

Decision Date01 January 1851
Citation6 Tex. 36
PartiesSWEENEY v. JARVIS.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

Where a bond to try the right of property is defective, it may be amended, or a new bond may be given (Note 6.)

Great injustice may be done by “lending too easy an ear” to applications for new trials. A party whose cause is just may be thus delayed in its prosecution until his witnesses are dead, his evidence lost or destroyed, and his rights ultimately defeated; or, if successful in the end, even success may not compensate for the harassment, vexation, and expense of causelessly protracted litigation.

The law in respect to certain matters confides in the judge a discretion which, from the nature of the case, cannot be revised, and is subject to no other limit or control than his own moral sense of justice. Such is the power of granting continuances. If a continuance be improperly granted, it cannot be corrected by a revising tribunal. Yet the injury may be as great as that of improperly granting a new trial.

Quere whether this court will revise the judgment of the District Court granting a new trial. (Note 7.)

If it were conceded that this court will revise the judgment of the District Court granting a new trial, it would yet be presumed that the new trial was properly granted unless the contrary appeared from the record. It would not be sufficient, to authorize a reversal, to show that the application for a new trial was defective, but it would be necessary that it should appear plainly that there was no good reason for the new trial or that there was some reason for apprehending that justice was not eventually administered.

The case of Madden v. Shapard, (3 Tex. R., 49,) as to new trials, cited and approved.

That part of the statute discussed, which requires a motion for a new trial to be accompanied by a written specification of the grounds on which it is founded.

Error from Harris. This was a trial of the right of property levied on by virtue of an execution in favor of the plantiff in error as the property of E. M. Jarvis, and claimed by his wife, the defendant in error, as her separate property.

The plaintiff moved the court to dismiss the proceedings for insufficiency in the bond filed by the claimant. Subsequently the claimant was permitted to give a new bond, to which permission the plaintiff objected, but his objections were overruled. There was a trial and verdict for the plaintiff.

The claimant moved for a new trial, on the ground of newly-discovered evidence. The facts stated in the motion were that the newly-discovered evidence would prove that the negroes in controversy were the property of the claimant, and that the evidence was not known to the party before the trial. The motion was accompanied by the affidavits of the witnesses by whom it was proposed to prove the facts. Upon argument the motion was adjudged insufficient for the want of the proper affidavits to the facts stated. These omissions the court permitted the party to supply, and thereupon granted a new trial. There is no statement accompanying the motion that it was not for the want of due diligence that the evidence was not discovered before the trial. There was a second trial, which resulted in a verdict for the claimant, upon which the court gave judgment, and the plaintiff prosecuted a writ of error. There is no statement of the facts proved upon either trial.

P. W. Gray, for plaintiff in error.

I. The motion for a new trial was overruled, because the facts stated were not sworn to. The court had no authority to permit the party to amend by making the oath. But the motion as amended did not show sufficient cause for a new trial. (Madden v. Shapard, Dec. Term, 1848; Stafford v. Callihan, 3 N. S., 124.)

Where a new trial is erroneously granted, the order and subsequent proceedings should be reversed and judgment given on the first verdict. (Holmes v. McKinney, 4 Mon. R., 4; Wood v. Am. Ins. Co., 7 How. Miss. R., 609; Moore v. Ayres, 5 Sm. & Marsh R., 310; Smedes's Digest, NEW TRIAL, 41, p. 329.)

II. The claim bond was insufficient, and the court had no power to receive a new one. The sheriff only is authorized by the statute to take one. (Acts of 1840, p. 65, sec. 3.)

J. W. Henderson, for defendant in error. The first ground relied upon by the plaintiff in error cannot avail him in this court, as he seeks here to inquire into a supposed error committed on the first trial, which, according to the rule established by this court in the case of ______ v. ______, Tex. R., cannot now be urged in this court as error. It is in the power of the court trying the cause to grant a new trial. (Hilliard v. Carr et al., 6 Ala. R., 557.) A motion for a new trial is a matter addressed to the judicial discretion of the court. (3 Stew. & Port. R., 244; 9 Port. R., 104; 1 Dall. R., 254; 1 Pet. R., 183.)

The appellate court ought always to look favorably upon the judgment of the court below, especially upon its rulings upon a matter addressed to its discretion. (2 Marsh. R., 314, 335.)

II. The second ground assumed as error cannot be sustained. This was a proceeding, common under the statute of 1840, establishing the mode of the trial of the right of property levied on by execution when the claimant was not a party to the execution. The statute merely contemplates that the claimant shall give the plaintiff in execution security. (Acts of 1840, p. 66, sec. 3.) The power exists in the court to allow the party to file a new bond if the first was defective. (Shelton v. Wade, decided in this court.)

WHEELER, J.

The giving of the bond was the institution of the claim of the party. If defective when objected to for that cause, it was we think within the province of the court to permit the objection to be obviated by amendment or by giving a new bond.

In support of the remaining ground on which it is proposed to reverse the judgment, we are referred to decisions of the courts of Kentucky and Mississippi, where it seems the practice is for the Appellate Court to revise the judgment of the court below granting a new trial; and if the new trial was improperly granted, to set aside the proceedings subsequent to the first verdict, and maintain the verdict rendered upon the first trial. (4 Mon. R., 4; 7 How. Miss. R., 609.) Such seems also to be the practice in Indiana and Illinois, and perhaps in some other States. (1 Blackf., 47; 1 Gilm. R., 160; 1 Cooke R., 90.) In Mississippi and Illinois this practice is founded on statute. (7 How. Miss. R., 634; 1 Gilm. R., 160.) And, although the references made have not afforded us that information, we think it not improbable that it is matter of statutory regulation in other States where the practice exists. For it is the doctrine of the common law that the granting or refusing of a new trial rests within the legal discretion of the court, and cannot be assigned as error. (2 T. R., 4; 4 Taunt. R., 555; 2 Ashm. R., 31; 1 Dev. R., 100; 10 Verm. R., 520.)

It is the settled practice of this court to revise the judgment of the District Court refusing a new trial. But there is no case in which it has revised a judgment granting a new trial. There seems to be less occasion for the exercise of a revising power in the latter case than in the former. If a new trial is improperly refused, the injury is irreparable. This may be the case where it is improperly granted, but it is not necessarily so, nor is such the natural or probable consequence. Ordinarily and in the absence of those casualties which may deprive a party of evidence upon the second trial which he had upon the first, the presumption is that the justice of the case will be as certainly attained upon the second as upon the first trial. For upon the second trial, as Blackstone in treating of this subject justly observes, “the parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master of the subject, and nothing is now tried but the real merits of the case.” (3 Bl. Com., 391.)

Great injustice, however, may be done by “lending too easy an ear” to applications for new trials. A party whose cause is just may be thus delayed in its prosecution until his witnesses are dead, his evidence lost or destroyed, and his rights ultimately defeated, or if successful in the end, even success may not compensate for the harassment, vexation, and expense of causelessly protracted litigation. But the law does not proceed upon the supposition that the power intrusted to its ministers will be abused. Its general rules do not contemplate extreme cases. Nor are such the legitimate or natural consequences of the discretion with which the courts are invested in granting new trials. And although in the exercise of that discretion injustice may sometimes be done, there is still this material and obvious distinction between the improper refusal and granting of a new trial. In the one case the injury is irreparable unless by a revising tribunal; in the other it ordinarily is not so, for another opportunity of obtaining justice is afforded.

But unless the granting of new trials is subject to a revising power it is not easy to perceive what effectual limitation there is upon the discretion of the judge, or how it can justly be said to be a legal as distinguished from that arbitrary discretion which has been characterized, in the extremely forcible language of Lord Camden, as “the law of tryants; always unknown; different in different men; casual; depending upon constitution, temper, passion.”

The law, however, in respect to certain matters does confide in the judge a discretion which, from the nature of the case, cannot be revised, and is subject to no other limit or control than his own moral sense of justice. Such is the power of granting continuances. If a continuance be improperly granted, it cannot be corrected by a revising tribunal. Yet the injury may be as great as that of improperly granting a new trial.

Whether this court will revise the judgment of the...

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15 cases
  • Saenz v. Sanders
    • United States
    • Texas Court of Appeals
    • June 27, 1951
    ... ... existence of a broad discretionary governmental power should cause some hesitation and study, for, as pointed out by the Supreme Court in Sweeney v. Jarvis, 6 Tex. 36, a discretion without effective limitation takes the form of an arbitrary as distinguished from a legal discretion, which was ... ...
  • Government Services Ins. Underwriters v. Jones
    • United States
    • Texas Supreme Court
    • May 22, 1963
    ... ... * * *' Story, Commentaries on the Constitution of the United States (3rd ed. 1858), Vol. I, p. 368, § 525 ... 4 In Sweeney v. Jarvis, 6 Tex. 36, l. c. 40, Mr. Justice Wheeler referred to the dictum of Lord Camden wherein 'arbitrary discretion' in a judicial officer was ... ...
  • Houston & T. C. R. Co. v. Davenport
    • United States
    • Texas Court of Appeals
    • April 4, 1908
    ... ... In the early case of Sweeney v. Jarvis, 6 Tex. 36, Judge Wheeler, in discussing this question, after laying down the rule substantially as above stated, says: "It is especially ... ...
  • Roy Jones Lumber Co. v. Murphy, 2422-7912.
    • United States
    • Texas Supreme Court
    • June 17, 1942
    ... ... We find it unnecessary to consider whether this ruling of the Court of Civil Appeals be correct or not." In the early case of Sweeney v. Jarvis, 6 Tex. 36, decided in 1851, Justice Wheeler, after quoting the statute of that day requiring that a motion for a new trial "shall be ... ...
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