McCrary v. Perry

McCay, J. 1. The remarks made by the Judge in this case, to defendant’s counsel, on the calling of the cause, and before it was submitted to the jury, cannot, in any fair sense, be said to be [256] a decision, judgment or decree in the cause. No objection seems to have been made to the plea, or to the admission of evidence under it. Indeed, for all we can see upon the record, the parties on both sides seem to have treated the remark of the Judge as a mere suggestion, since neither of them acted upon it. The known opinion of a Judge, as to the law of a case, is no excuse for failing to put in a plea or tender evidence. A Judge cannot decide a point until it is made. At any rate, this Court cannot hold as error, a decision which is not in fact made in the cause, and the knowledge of the party of the Judge’s opinion, is no excuse for failing to demand a decision. 2. Whilst we would not, perhaps, disturb the verdict of the jury, on the plea to the jurisdiction of the Court, were it brought before us, even on a motion for a new trial, for the reason that there is, without doubt, some evidence to support it, yet we are clear, that even if it were directly contrary to the evidence, it cannot be reached by a mere motion to set aside the verdict, on the ground that the Court had no jurisdiction of the case. That was one of the very issues passed upon by the jury, indeed, it was the principal issué on the trial. The jury has found, that, under the facts, the Court had jurisdiction. The verdict is conclusive, unless it be set aside in the usual way, by a motion for a new trial. We will not say that there might not be circumstances of fraud, or perjury and corruption, sufficient to authorize a Court to set aside a verdict; but there is no such allegation here. It is a simple attempt to move to set aside the verdict, because, as is alleged, it is against the weight of evidence. There is no brief of testimony filed and approved by the Court, no notice, etc., as is required by law, in motion for a new trial. Nor is it pretended that this is even, the object of the motion. It is in fact an appeal from the jury to the Court, on the facts of the case, a'nd had the motion prevailed, the plaintiff’s case would have been dismissed. We are of opinion that such a proceeding is not authorized by law, and that the Court did right in overruling the motion. Judgmen't affirmed.