United States v. Trabing
| Decision Date | 21 April 1885 |
| Citation | 6 P. 721,3 Wyo. 144 |
| Parties | UNITED STATES v. TRABING |
| Court | Wyoming Supreme Court |
Error to district court.
Action by Trabing and another against the United States. From a judgment in favor of plaintiffs, defendant brings error. Dismissed.
Motion dismissed.
John A Riner, for the United States.
Corlett & Blake, for defendants in error.
OPINION
The defendants in error have filed a motion to dismiss the writ of error in this cause on the ground that the record presents no question for the consideration of this court. There are 18 assignments of error, of which 2 seek to question the sufficiency of the evidence to sustain the verdict, 15 relate to alleged errors of law occurring on the trial, and 1 is based upon the decision of the court below in overruling the motion for a new trial.
It is contended that the bill of exceptions was not settled and signed within the proper time. Without deciding anything upon that point, we will consider other points raised as though the bill of exceptions was properly in the record, thus bringing into the record all the evidence, the instructions to the jury, and the motion for a new trial. The record does not show any exception to the decision upon the motion for a new trial, unless it be held that the plaintiff in error reserved such exception by merely asking time in which to prepare a general bill of exceptions. Rule 6 of this court, which has been in force a dozen years, provides that "no case will be heard in court unless a motion for a new trial shall have been made in the court below, in which all matters of error and exceptions have been presented argued, and the motion overruled, and exception taken to the overruling of said motion. * * *" Since it is highly important that rules of practice should be settled and fixed this rule, having been in force so long, should still be adhered to, unless it denies some substantial right, or is so unreasonable as to require its abandonment.
The uniform ruling, both in England and in this country, seems to be that an assignment of error, based upon the alleged insufficiency of the evidence, presents nothing for the consideration of a court of errors. A motion for a new trial is always necessary to raise that question. The practice has not been at all uniform, however, with reference to some of the questions more or less involved in the decision of this motion. It is not necessary here to review the cases, but it may be of assistance to consider certain results reached by the courts, citing only a few of the numerous cases in which these questions have been considered. At common law, after the original severity of the practice had so far relaxed as to permit a verdict to be attacked by a motion for a new trial, that motion was addressed to the discretion of the court, and a ruling upon it could not ordinarily be assigned as error in a reviewing court. But a motion for a new trial could not be made upon exceptions. Moreover, the party making the motion thereby waived all exceptions taken on the trial.
In many of the states it is still held that a motion for a new trial is addressed to the sound discretion of the trial court, even when based upon errors of law. Final v. Backus, 18 Mich. 218; Johr v. People, 26 Mich. 427; Waters v. Waters, 26 Md. 53 at 53-73. In other states it is held that the ruling upon a motion for a new trial, when that motion is based upon errors of law, is reviewable as other questions of law, and is not matter of discretion. O'Brien v. Brady, 23 Cal. 243; Cochran v. O'Keefe, 34 Cal. 554; Voll v. Hollis, 60 Cal. 569; Nesbit v. Hines, 17 Kan. 316; Kline v. Wynne, 10 Ohio St. 223; Spooner v. Keeler, 51 N.Y. 527; Standard Oil Co. v. Amazon Ins. Co., 79 N.Y. 506. It is sometimes held that a party should be required to waive exceptions before his motion for a new trial is entertained. Meeker v. Boylan, 27 N.J.L. 262. And this especially when the motion and the exceptions involve the same matters. Lee v. Tinges, 7 Md. 215; Mann v. Glover, 14 N.J.L. 195. On the other hand, it seems to have been held that one who takes a bill of exceptions embodying his objections to rulings on the trial, after his motion for a new trial has been overruled, thereby waives the objection based upon the denial of the motion. Klein v. Insurance Co., 13 Pa. 247.
In a number of states the aggrieved party may present to the reviewing court exceptions taken on the trial, without reference to whether or not a new trial was demanded in the lower court, (Railroad Co. v. Chastine, 54 Miss. 503; Hayward v. Ormsbee, 11 Wis. 3; Smith v. Gillett, 50 Ill. 290; Earp v. Railway Co., 12 Ohio St. 621; Brown v. Tolles, 7 Cal. 398; Walls v. Preston, 25 Cal. 59; Brown v. Willoughby, 5 Colo. 1; Butterfield v. Stephens, 59 Iowa 596, 13 N.W. 751; Dedric v. Hopson, 62 Iowa 562, 17 N.W. 772,) and even though a new trial was asked for the same errors, (Carpentier v. Williamson, 25 Cal. 154-167.) In other states, errors of law occurring on the trial, and not presented in a motion for a new trial in the trial court, are held to be waived. Nesbit v. Hines, 17 Kan. 316; Decker v. House, 30 Kan. 614, 1 P. 584; Railroad Co. v. McCartney, 1 Neb. 398; Stanton Co. v. Canfield, 10 Neb. 389, 6 N.W. 466; Detherage v. Montgomery, 67 Ky. 46, 4 Bush 46; Pogue v. State, 13 Mo. 444; State v. Richardson, 77 Mo. 589; Kent v. Lawson, 12 Ind. 675; Hallock v. Iglehart, 30 Ind. 327; Edwards v. Powell, 74 Ind. 294; Steck v. Mahar, 26 Ark. 536.
Much of this diversity grows out of differences in the statutes of the several states, but it at least seems to emphasize the conclusion that nothing is involved except a mere question of practice. If this court should hold that a motion for a new trial waives exceptions to rulings on the trial, and that such motion is in all things addressed to the discretion of the trial court, then the rule requiring such motion to be made would be a delusion, and should not be enforced. It would be taking away substantial rights, and giving instead a shadow.
Our statute concerning new trials, so far as it is applicable to errors of law, is as follows:
It seems a fair construction of this statute to hold that under it a motion for a new trial, in so far as it is based upon...
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