Honey v. Honey's Heirs

Scott, Judge, delivered the opinion of the court. 1. The new practice act does not take away any of the remedies afforded by the old system for the redress of wrongs. It merely changes the mode by which the remedy is to be pursued. Under the former system of practice, courts of equity would interfere by injunction after a judgment at law, upon an application for a new trial on suitable grounds. As a motion for a new trial could only be made during the term at which the trial was had, if this proceeding be regarded in the light of such a motion, it clearly can not be sustained, as the motion was not made until a term succeeding that at which the trial took place. 2. Without a total disregard of all form in judicial proceedings, this motion cannot be regarded as an application for a new trial, addressed to a court of equity under the old system of practice. But even if it could be viewed in such a light, as [468] the motion only seeks a new trial, that evidence may be heard on that which has been already tried, a court of equity would not grant relief under such circumstances. Smith & Mead v. Lowry, 1 John. Ch. R. 320. Judge Ryland concurring, the judgment will be affirmed.