Gibbes v. Elliott

The opinion of the Court was delivered by • Willard, A. J. A motion was made before the Circuit Court to set aside a judgment and verdict on the grounds of mistake, inadvertence, surprise and excusable neglect, which was denied by the Court, and, on appeal, is brought to this Court. Defendant alleges that a mistake was made as to the value of diamond jewelry in controversy, and that a verdict was allowed to be taken by consent for a sum supposed to represent the value of the property, and which has since been discovered to be greatly in excess of its true value. It is alleged that the verdict is a consent verdict and relief is asked on the ground that such a verdict can only be regarded as the contract of the parties, and, as such, relief may be had of an equitable nature as in case of mutual mistake. The record does not, however, support the statement that the verdict is a consent verdict. A verdict by consent, properly speaking, is the act of the parties and not the proper act of the jury. In the present case, the understanding of the parties appears to have related to the character of the evidence to be submitted to the jury alone. The verdict appears to have been taken in ordinary course on the evidence submitted under the arrangement of counsel. The motion cannot be regarded in any other light than as one for a new trial upon the ground of newly-discovered evidence. At the trial the defendant supposed that she was unable to procure testimony that would have the effect to reduce the verdict, believing the value of the property to be correctly represented by the agreed testimony. She now discovers that she can obtain testimony that ought to reduce the verdict. But whether the motion below is to be considered as grounded on the fact of newly-discovered evidence or upon surprise, the result is the same as affected by the jurisdiction of this Court in such cases. The Circuit Court has, by statute, authority to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the Courts of law of the United States. — 'Gen. Stat., 497, § 4. Relief is granted in the Courts of law of original jurisdiction of the United States in cases of surprise and of newly-discovered evidence. — Abbott’s U. S. Practice, vol. 2, 198. Such motions are addressed to the sound discretion of the Court, and are granted or [61] denied, not as matters of strict right, but as the substantial justice of the ease may appear to require. — Ibid, 197. The constitutional authority of this Court, as it regards cases of legal cognizance, that is, of such as are properly cognizable in Courts of law as distinguishable from Courts of equity, is conferred by the declaration that the Supreme Court “shall constitute a Court for the correction of errors at law under such regulations as the General Assembly may by law prescribe.”—Const., Art. IV, § 4; see Sullivan vs. Thomas, 3 S. C., 531. This jurisdiction has been in part defined by Section 11 of the Code of Procedure, as amended November 25, 1873. — 15 Stat., 495. This Section now reads as follows: “The Supreme Court shall have exclusive jurisdiction to review on appeal: “1. Any intermediate judgment, order or decree involving the merits in actions commenced in .the Courts of Common Pleas and General Sessions, brought there by original process or removed there from any inferior Courts or jurisdiction, and final judgments in such actions: Provided, If no appeal shall be taken until final judgment is entered. The Court may, upon appeal from such final judgment, review any intermediate order or decree necessarily affecting the judgment not before appealed from. “2. An order affecting a substantial right made in an action where such order in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action, and when such order grants or refuses a new trial, or when such order strikes out an answer, or any part thereof, or any pleading in an action; but no appeal to the Supreme Court from an order granting a new trial on a ease made on a bill of exceptions shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant that if the order be affirmed judgment absolute shall be rendered against the appellant, etc. “ 3. A final order affecting a substantial right, made in a special proceeding or upon a summary application in action, after judgment, and upon such appeal to review any intermediate order involving the merits and necessarily affecting the order appealed from.” [62] The appeals allowed by subdivisions 1 and 2 are those arising in the course of actions, and are intended to affect the final judgment of the Court in such actions. Subdivision 3 covers two cases: first, appeals from orders in special proceedings, which are defined by the Code as being every remedy other'than the ordinary proceeding in a Court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of_ a public offense, (Code, § 2); and, second, appeals from orders made in summary' applications in an action after judgment. In the last named class of cases the object of the proceeding is not to disturb or to affect the judgment, but to give it efficiency. In other words, the summary applications referred to are proceedings based upon the judgment and assuming its correctness. (See opinion Selden, J., in Selden vs. Canal Company, 29 N. Y., 637.) It therefore appears that if the object of a motion is to affect a judgment by setting it aside, reversing’or modifying it, either directly or indirectly, by affecting the verdict upon which it was rendered, the appeal must be authorized by the provisions of the first or second subdivisions of Section 11, as amended. Subdivision second authorizes such an appeal as that before us in express terms, as it is an appeal from an order refusing a new trial. But we can only set aside the order on the ground that error of law has been committed by the Circuit Court. The action was one of legal cognizance alone, and involved no cause of action or defense proper for the consideration of a Court of equitable jurisdiction. We are, therefore, confined by the terms of the Constitution to reviewing the decision of the Court on the matters of law before it and cannot set the order aside on the ground that the Court did not give due weight to the matters of fact presented by the motion. We do not find that any error of law was committed. The Court entertained the motion and looked into the questions of fact presented. Had the motion been denied on the ground that the Court had no authority in cases of that class, we might have set such conclusion aside and sent the case back to enable the Circuit Court to pass upon the facts involved. The questions upon such a motion are, whether the facts of which the party alleges that he has made recent discovery are new and material to the case, and whether the application is in good faith and the party making it has used due diligence both in preparing his case originally and in making his appli [63] cation after the discovery of the testimony. (See Abbott’s U. S. P., v. 2, p. 198.)" These are purely questions of fact. By their aid the Court inquires whether substantial justice has been done to the parties, upon which the conclusion of the Court ought to rest. From such an inquiry we are shut out in cases at law by the nature of our constitutional jurisdiction. It was held in Selden vs. Canal Co., (29 N. Y., 637,) that the Court of Appeals of New York could not review an order denying a motion to set aside a verdict on the ground of surprise. And in Scoville vs. Landon, (50 N. Y., 686,) it was held that an order refusing-a motion for a new trial on the ground of newly-discovered evidence was not appealable to the Court of Appeals. The Court of Appeals, is like this Court, a Court for the correction of errors at law, and the application of the rules of the Code of Procedure to the jurisdiction of that Court ought to yield the same results as the application of our Code to the jurisdiction of the Supreme Court.—See Abbotts’ U. S. Prac., 228. The record before us presents no ground upon which we are authorized to disturb the order of the Circuit Court, and ihe appeal should be dismissed. Moses, C. J., and Wright, A. J., concurred.