Beatty v. Hatcher

By the Couet. The plaintiff, Hatcher, in his petition, claimed title in the goods seized by the defendant, as sheriff, and sought to recover their value from him. The first de — 119 — fense set up in the answer having been withdrawn, the case was tried on the second defense set up in the answer, which simply alleged fraud in the assignment under which the plaintiff claimed. This did not admit that the plaintiff ever had title to the goods, and was, in effect, only a special denial of the title alleged in the petition. Before the plaintiff would be entitled to recover at all, he would have to show a title in himself, for the answer admits nothing but a fraudulent assignment, which is not an admission of any title. This state of pleading under the third clause of section 266 of the code, gave the affirmative of the issue to the plaintiff; and there was no error in the court below so ruling. The clerk of the court who selected the list of persons from among whom the struck jury was to be chosen, had formerly been of counsel for the plaintiff in error, the party now objecting, but had ceased to occupy that relation prior to the time when he was required to discharge this ministerial duty; and, so far as appears, he had then no interest in the result of the case. We know of no law which disqualified him, under those circumstances, to act in the premises, especially as it does not appear that any objection was made at the time the jury was struck; and we think there was no error in the refusal of the court below to set aside the panel of struck jurors on this account. When the motion for a new trial, the allowance of which is assigned for error, finally came on for hearing, the judge who presided at the trial had resigned; no notes of the testimony had been preserved by him; and the.judges before whom the motion was heard found themselves in a position of no little embarrassment. They were compelled to resort to the best lights attainable under the circumstances. They referred to an opinion drawn up by their predecessor in vacation, and received the statements of counsel respectively as to what had been the testimony on the trial. To this no objection seems to have been made. If they had recalled the witnesses on the former trial, to re-state their testimony, or had received affidavits on the subject of their former testi — 120 — mony, this would have been in effect, but a new trial to the court instead of a jury. The statements of counsel as tc what the testimony had been on the trial, were contradictory; but non constat but that they so far agreed as to reasonably justify the action of the court. The record does not satisfy us affirmatively, that there was error in the action of the court, in awarding a new trial; and for this reason, if for no other, it must stand. But, does error lie to reverse an order of the court granting a new trial ? A motion for a new trial is addressed to the sound legal discretion of the court; and to the decision of the court on such a motion, error can not, at common law, be assigned. 2 Gra. & Wat., on New Trials, 46. An order awarding a new trial, is clearly not a final order, as defined by section 512 of the code, on which error will lie before final judgment in the case; for it is not an order which “ in effect determines the actionnor is it made “ in a special proceeding after judgment.” The act of April 12, 1858, “ to relieve the district courts,” etc., however, provides: Sec. 4. “ In all cases pending in the court of common pleas, or either of the superior courts in this state, either party shall have the right to except to the opinion of the court on a motion to direct a nonsuit, to arrest the testimony from the jury, and also, in all cases of motion for a new trial, by reason of any supposed misdirection of the court to the jury, or by reason that the verdict, or, in case the jury be waived, that the finding of the court may be supposed to be against law or evidence, so that said case may be removed by petition in error; and when a party to a suit in either of the aforesaid courts alleges an exception to the opinion, or order, or judgment of such court, it shall be the duty of such judge or judges of such court, concurring in such judgment, opinion or order, if required by such party, during the progress of the case, to sign and seal a bill containing such exception or exceptions, before the case proceeds; or, if the party consents, the signing and sealing of such bill of exceptions may — 121 — be suspended until the trial is over, but said bill of exceptions shall be signed and sealed during the term, and such bill of exceptions when signed and sealed, shall, if the party desires it, be made part of the record in such suit.” 4 Ourwen’s St. 3088. In the case of Spafford v. Bradley, 20 Ohio Rep. 74, on a similar question arising under a statute precisely identical in its provisions with the section above quoted, Spalding, J., delivering the opinion of the, court, remarks : “ Since the right of appeal has been taken away from the parties in actions at law, this court has often interposed, under the act of 1845, to reverse a judgment, for the reason that the court in which it was rendered, had unreasonably refused a new trial; the verdict being manifestly against the evidence. This is, in effect, a second trial upon the weight of the testimony before a different tribunal, and the power conferred by the statute, upon this court, is sometimes necessarily called into exercise, to prevent a total failure of justice. Not so, however, where the error assigned is, that the court below sustained the motion for a new trial, and set aside the verdict or judgment. No irreparable wrong can be done in such a case, as it only compels the parties to retrace their steps, and submit their proofs and allegations a second time to the same tribunal. Hence, although, by the terms of the statute, the party supposing himself aggrieved, would seem entitled to his writ of error as well where a motion for a new trial is sustained, as where it is refused, no case has occurred in practice, where this court has seen fit to reverse the proceedings of a subordinate tribunal, for the sole reason that it has on motion, set aside a verdict as against evidence, and ordered a new trial.” As the act of 1845, referred to, in Spafford v. Bradley, and section 4, of the act of 1858, were both enacted simultaneously with other enactments abolishing the right of appeal from the common pleas in cases at law, the primary object of both statutes undoubtedly was to secure the granting of new trials in all-proper cases ; and we can add our testimony to that of the court, in Spafford v. Bradley, that we have — 122 — never known a case where their provisions have been made available to reverse an order awarding a new trial. And while it is not necessary to hold that we will in no case employ this power apparently conferred by the letter of the statute, we are free to say that it will require a strong case to justify its exercise. Judgment affirmed. — 123 — CASES ARGUED AND DETERMINE.D • IN THE SUPREME COURT OF OHIO. DECEMBER TERM, 1862. Hon. MILTON SUTLIFF, Chief Justice. Hon. WILLIAM V. PECK, Hon. WILLIAM Y. GHOLSON, Hon. JACOB BRINKERHOFF, Hon. JOSIAH SCOTT, Judges.