Thurber & Stevenson v. Townsend & Wilbur

Selden, J. It appears from the record in this ease, that the judgment of the Mayor’s Court was reversed by the Supreme Court for error in fact; and the circumstances of the case, together with the nature of the judgment rendered by the Supreme Court, show that the real ground of reversal must have been an excess on the part of the jury in their assessment of damages. The appeal from the Mayor’s Court to the Supreme Court was taken under section 344 of the Code, and the question arises whether, upon this appeal, the Supreme Court had a right to reverse the judgment for such a cause. If that court had the power, then a further question would arise, whether this court could review its decision in that respect; but if it had not the right to reverse for that reason, then, of course, its judgment must be reversed here, and that of the Mayor’s Court affirmed. The nature and scope of this appeal is not defined by the Code. Section 344 is entirely silent as to the effect of the appeal, which it authorizes. This, therefore, must depend upon the general rules applicable to the review of causes brought from inferior courts, and upon the analogies of the law. Prior to the Code, the mode of reviewing the judgments of Courts of Common Pleas and Mayors’ Courts was by writ of error from the Supreme Court. By section 323 of the Code, writs of error are abolished, and the sections immediately following proceed to substitute the remedy by appeal. Where there are no special provisions giving to this remedy a broader *519 and more comprehensive scope, the power of review which it confers must, I apprehend, be the same as that formerly obtained by writ of error. I can see no reason why it should be other or greater. It is very clear that the Supreme Court had no power, upon & writ of error to a Court of Common Pleas or Mayor’s Court, to reverse the judgment of the court below upon the ground that the verdict of the jury was against the weight of evidence. It was only errors of the court and not of the jury which it had power thus to correct. It was a well settled rule that all errors of the jury must be corrected in the court where the trial was had. It is true the Supreme Court could, upon writ of error, take cognizance of errors of fact as well as of law. (Arnold v. Sandford, 14 John, 417.) But it was only errors of the court whether in fact or in law which could be thus reviewed, cases where, in consequence of some fact unknown or unnoticed, some irregularity had occurred in the proceedings; such as permitting a married woman or an infant to appear by attorney. The proper mode of correcting any error of the jury in this case, was by motion in the Mayor’s Court to set aside the verdict and for a new trial, which motion that court was authorized to entertain, and the decision of that court upon the subject would have been final. It was held in ex parte Bassett, (2 Cow., 458), that the Supreme Court had no power to review in any form the action of a Court of Common Pleas, after it had set aside a referee’s report, upon the ground that it was against the weight of evidence. It was considered a question of discretion with which the Supreme Court could not interfere, except in an extreme case, where the evidence was all on one side. The setting aside of a verdict on account of excessive damages, which is still more clearly discretionary, cannot, therefore, for the same reason, be open to review. If, then, the Supreme Court could not review the action of the Mayor’s Court, provided that court had itself set aside the verdict upon motion, as against evidence, or for excessive damages, much less could they proceed to pass directly upon the propriety of *520 the verdict, without the question ever having been submitted at all to the court below. It is clear, therefore, that the Supreme Court erred in assuming to reverse the judgment upon that ground. Its order would, nevertheless, be affirmed, if the record disclosed any error of law which would have justified that court in reversing the judgment of the Mayor’s Court; but upon examination, I can discover no such error. The judgment of the Supreme Court must be reversed, and that of the Mayor’s Court affirmed. All the judges concurring, Judgment reversed.