Reiber v. Boos

Mr. Justice Gordon delivered the opinion of the court October 26th, 1885. From the records, the case now under consideration may be stated as follows: On the 22d of February, 1884,_after trial, there was a verdict for the defendants. On the 25th of the same month, a motion for a new trial, on part of the plaintiff, George Reiber, was entertained; this motion was argued on the 81st of December following, and on the 5th of January, 1885, a new trial was granted on the condition that the plaintiff pay all the record costs, and one half of the defendants’ bill. On the 14th of the same month, Reiber complied with the condition thus imposed upon him, and so entitled himself to a new.trial. Then on the 17th a rule was granted to show cause why the order of the 5th of January should not be revoked, and this rule was made absolute, March 19th, 1885. Finally, on the 6th of June, judgment was entered against Reiber for costs. Thus stands the record, and according to the case of Van Vliet v. Conrad, 14 Nor., 495, on its face clear error is apparent. We there held, that where a new trial had been granted to the defendant, under specific conditions, and those conditions had been complied with, he had thereby acquired a right of which the court could not deprive him by a subsequent-revocation of its order. The case in hand and that cited are in principle identical. A new trial in both cases was ordered subject to certain conditions imposed on the parties at whose instance the rules were entertained, and in both the conditions were fully performed. The defendants’ counsel seeks to avoid the force of the authority cited by insisting that, at all events, Reiber would have had the costs to pay, hence, he suffered no detriment by paying them before judgment. The answer is, yes, this is correct if the verdict were allowed to stand; if he did not get a re-trial of his case, or have it reversed by this court on a writ of error; and just so in Van Vliet v. Conrad, Van Vliet, as defendant, would necessarily have had both debt and costs to pay had there been no award of a new trial or reversal in this court. In this, however, is stated the material point of the case: Reiber had a right to a writ of error, and through that writ he might have had a re-trial, and in case of his success in the Common Pleas he would have been entitled to the costs instead of being obliged to pay them. As it was, however, he waived his right to such writ, and paid costs and charges, which, though successful in a second trial, he cannot [598] recover from tbe defendants. It thus appears, that the plaintiff not only paid money which lie might not have had to pay, but also surrendered a valuable right in consideration of a new trial; hence, on principle, as well as authority, the court had no power to annul its previous action. Something has been predicated of the fact, that the commission of the additional law judge, by whom the decision of the court was announced, had expired on the day preceding that on which the order was made for the new trial. Granted that this was so, yet there is no doubt but that the court was properly held by the associates. The rule had been argued before all the judges, and certainly there was nothing either improper or unlawful in the enunciation of their opinion either by the associates, or by the former law judge as amicus curia}. It was not a case for a special court, for there was nothing but a .decision to announce. Even had the associates alone heard, and made disposition of the rule, there would, according to the case above cited, have been no error. Neither Kolb’s Case, 4 Watts, 154, nor the Glamorgan Iron Company v. Snyder, 3 Nor., 397, conflicts with Van Vliet v. Conrad. In the one, we refused a mandamus on the associate judges of York county to compel them to proceed to hear and determine a rule for a new trial, which was, under the facts of the case, the subject for a special court; and in the other, we held, that the associates, in vacation, could not revoke the order of a law judge, granting a new trial, who had presided over a special court convened for the disposition of the case. I am aware that, in both these cases, a good deal was said which the facts did not warrant, and if the dicta therein contained were to be held as law, associate judges would be stripped of most of their constitutional prerogatives, and be reduced to mere confidential advisers of the law judge. In counties where such judges are elected thev are necessary constituents of the several courts, and by the 38th sec. of the Act of 1834, a special court cannot be held without at least one of them. Neither does the constitution, nor the Act just mentioned, restrict their powers, or reduce them judicially to a position inferior to that of an associate law judge. It is true, they ought not, as a rule, to interfere with the presiding judge in the trial of a case, but especially in the granting of new trials, they not only may, but sometimes ought, as a matter of imperative duty, interfere to refuse or grant them as justice seems to require, since in this they may prevent great wrong. For my own part, I cannot see why, when associates are elected as judges, are commissioned as judges, and are required by our constitution and laws to sit in [599] tbe courts as judges, they are not to be permitted to act as judges. But this aside, we have no doubt but that, in tbe case in baud, the court that ordered tbe new trial was properly constituted, and, as a consequence, its order of the 5th of January is valid and not open to impeachment. The judgment is reversed and a procedendo awarded.