Jackson v. Fassett — 9 Abb. Pr. 137

Majority

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JACKSON a. FASSETT.

Supreme Court, First District;

Special Term, January, 1859.

Headnote

Motion foe New Trial.—Appeal.

Upon exceptions taken to the ruling of the judge and his charge, at the trial, the defendant, after judgment entered on a verdict against him, moved at special term, before another justice, for a new trial.

Held, that the motion should be denied. Although the justice before whom the cause was tried may entertain such motion, another justice cannot: nor can it be made in any way after judgment is perfected. The only mode of reviewing the judgment is by appeal^[1]

Motion for a new trial.

This was an action against the drawer and indorsers of a bill of exchange or draft, and was tried at a circuit in the first dis

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trict, held by Mr. Justice W. F. Allen. The defence set up by the indorser who litigated the action, was, that the draft was given in renewal of a former draft made and indorsed by the same parties, which was usuriously discounted by the plaintiff, in its inception, the indorsers being accommodation indorsers, without consideration. The plaintiff relied on representations made by the maker, that the draft was business paper, upon the faith of which he testified he discounted the draft.

The testimony showed that the draft was one of two given at the same time, and which together, amounted to the sum of the former draft. The court excluded evidence respecting the other of the two drafts unless it was produced, to which ruling the defendants’ counsel excepted. The court charged in substance, that if the jury believed that the drawer represented that the paper was business paper, and the plaintiff took it on the strength of those representations, the indorsers were estopped from setting up usury. To this charge, and to the refusal of the court to charge in accordance with this request, the defendant’s counsel excepted. The jury found for the plaintiff. The case and exceptions were settled, with leave to either party to turn the case into a bill of exceptions.

After judgment had been entered on the verdict, the defendant moved upon the exceptions at special term, before Mr. Justice Roosevelt, for a new trial.

A. Hough, for the motion.

The only mode of reviewing questions of law determined at the trial is by appeal from the judgment, and not by motion for a new trial. (Code, § 323; Morgan a. Bruce, 1 Code R. N. B., 364.) 1. It is the only mode of reviewing a judgment entered upon the direction of a single judge, except in cases of surprise, mistake, or the like, where the application, is addressed to the favor of the court. (Code, § 348, Rule, 24.) 2. A judgment entered after trial by jury, is a judgment entered on the direction of a single judge. (Code, §§ 278, 255.) 3. A motion for a new trial should be made before judgment; after judgment the remedy must be by appeal. (Watson a. Serwin, 7 How. Pr. R., 10.) 4. By the old practice, a motion for a new trial on a question of law upon a bill

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of exceptions or otherwise, was always heard before the judge who tried the cause, or before the general term. Any other course would be manifestly improper. (1 Bwurr. Pr., 457, 468, 470.)

This cause was tried at the circuit. Certain exceptions were taken by the defendant to the charge of the judge, and a motion is now made at special term before a different judge, on the exceptions thus taken, and on no other grounds, for a new trial after judgment has been entered up. The effect of such motions, if entertained, it is obvious, is to present the unseemly spectacle of a single judge reviewing, and, it may be, reversing, the opinions of one of his brethren having precisely the same authority as himself.

It is said the Code, whether seemly or unseemly, warrants the proceeding. Section 265 declares that a motion for a new trial, on exceptions, must, in the first instance, be heard and decided at “ the circuit or special term,” unless the judge at the tried directs them to be heard first at general term, and in the mean time suspends the judgment. A fair interpretation of this clause would seem to be, that the judge holding “ the circuit or special term” at which the cause was tried, and whose rulings were excepted to, might, before rendering fined judgment, on his own first impressions, be called upon to hear further argument and to grant a new trial, if upon more mature reflection it should appear proper; or, to send the case directly without final judgment to the general term. Indeed, section 264 expressly provides that the judge “ who tries the cause” may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial on exceptions ; but in that case the motion can only be heard at the same term or circuit. It is the same judge and not another who rehears the objections. And this he does not after, but before judgment. Instead of permitting the clerk to “ enter judgment in conformity with the verdict,” he directs him to enter “ an order that the cause be reserved for argument or further consideration,” in other words, that the judgment be suspended for his own review of the exceptions prior to the review by the general term. And this interpretation is in harmony with the language of the title on appeals, which declares, that “ the only mode of reviewing

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a judgment or order in a civil action shall he that prescribed by this title.” A motion for a new trial after judgment, on exceptions merely, is, in effect, an appeal upon the law; and is to all intents and purposes a mere “ mode of reviewing that judgment.” Is it the mode prescribed by the title referred to ? An appeal upon the law, in all cases, says section 348, may be taken to the general term, from a judgment entered on the direction of a single judge of the same court; and it must he taken, says section 332, within thirty days after written notice of “ the judgment.” As the mode prescribed, therefore, in such cases, is by appeal to the general term, and as that is the only mode prescribed, any other mode of effecting a review is, in effect, prohibited. The unsuccessful party, if he desires it, after judgment at the circuit, must apply for a new trial at the general term; and that he can only do by a regular appeal taken in the mode prescribed. The general term, “ upon an appeal from a judgment, may, if necessary or proper, order a new trial.” (Code, § 330.)

The defendant’s motion for a new trial must, consequently, be denied, for want of jurisdiction in the special term to entertain the proceeding; and also, if necessary, it may be added in the order, for want of merits in the exceptions, so that, if the general term, on appeal from this order, should be of opinion that there was jurisdiction, the whole subject, and not ¿he point of practice alone, may be reviewed.

The ease cited from Duer’s Reports only goes the length of holding that, where a judgment is entered as security, a motion for a new trial on exceptions may be entertained. Such a judgment differs from a final adjudication. It stands by agreement upon the footing of a lien merely—a sort of provisional security—which the party is estopped from setting up as a bar to a motion as distinguished from an appeal. It is not a final adjudication of the judge at circuit upon the whole matter, including the exceptions duly entered of record. "Were it so, it could only be reviewed by appeal (in the nature of a writ of error) to a higher tribunal, or to a higher branch of the same tribunal.

Motion denied.