Gilliland v. Rappleyea

The opinion of the court was delivered by Hornblower, C. J. This was an action of trespass: a verdict was rendered for the defendant below, who is also defendant in error. On a motion for a new trial, the verdict was set aside; and a new trial ordered on payment of costs. This rule was granted in March term, 1832. In the same term, a rule was entered, requiring the plaintiff to pay the costs in thirty days, and bring the cause to trial at the next term, or be non prossed. The plaintiff regularly noticed his cause for trial, at the ensuing term; and (as he states) was then ready to pay the costs of the former trial, but the court ordered the rule for a new trial to be discharged, and the, plaintiff to be non prossed, on the ground that he had not paid the costs, pursuant to the rule on him for that purpose. This much appears by the state of the case agreed upon, and signed by the counsel for the parties. If nothing more had been done, however harsh the proceeding might be considered, I do not see how error could have been assigned upon it. Instead however of a judgment of non pros, it appears by the record sent up to this court, that the Court of Common Pleas rendered judgment for the defendant, on the verdict of the jury. Upon the coming in of this record, the plaintiff in error assigned errors; and [142] among others, that after the court had set aside the verdict, and non grossed the plaintiff, they had rendered a final judgment against him on the verdict of the jury; and upon an allegation of diminution in that respect, he took a rule on the Common Pleas, to complete their return. In answer to this rule, the Common Pleas certified, that the return made by them to the writ of error, contained the whole of the record and proceedings had before them. Hereupon the defendant in error, pleaded in nullo est erratum. But several successive rules were afterwards taken by the plaintiff, on the court below, until finally they certified the proceedings to have been, as are above stated. , The plaintiff then by leave of this court, made a further assignment of errors; and the defendant joined in error. If we are at liberty to review the history of this cause in the court below, it seems to me we must pronounce their proceedings erroneous; after having set aside the verdict, because (as we must presume) it was an unlawful one, they ought not afterwards to have entered a final judgment upon it, and excluded the plaintiff from bringing another action, simply, because he had not paid the costs of the first trial. They seem to have proceeded upon the idea, that the verdict had only been conditionally set aside ; that is, upon condition that the plaintiff would pay the costs. This I apprehend, was a mistake into which they were probably led by the form of expression usually employed in entering the rule, viz: “ that the verdict be set aside, and a new trial granted on payment of costs.” The payment of costs, is no doubt a condition precedent; not however, to setting aside the verdict, but to the party’s having a new trial. The court; never say to a party, we will set aside the verdict against you, if you will pay the costs. The question, whether a verdict ought, or ought not to be set aside, although it is said to be addressed to the sound discretion of the court, is nevertheless a question of law; and when set aside, it is because justice forbids that any judgment should be rendered upon' it. But the payment of costs, when it is ordered, is annexed as a condition upon which the party may have a new trial; and yet not strictly as a condition in such a sense, that if it is not performed, there shall be no new trial. It is rather [143] an order on the party, at whose instance the verdict has been set aside, that he shall pay the costs of the first trial; which order, like other interlocutory orders, may be enforced by attachment. When a verdict has been set aside at the instance of the plaintiff, and a new trial granted, on payment of costs by him, it is true, the defendant has an additional remedy; he may ■apply to the court to restrain the party from proceeding to a second trial, until the costs of the former trial have been paid. It then becomes, as to the plaintiff, a condition precedent. The court may tie up his hands until he pays the costs, or if he does not pay them, and bring his cause to a trial within such time as the court shall prescribe, he may be non prossed for not going to trial. But it is contended by the defendant’s counsel, that our inspection must be confined to the record sent up with the writ of error: — 1st, because the proceedings after the trial, are not assignable for error; but matters of practice, in which, courts are governed by their own rules. And 2dly, because those proceedings are not properly before this court; not having been brought here by a writ of certiorari for that purpose. In support of the first position, we are referred to the cases of Woods and al. v. Young, 4 Cranch 237; Henderson v. Moore, 5 Cranch 11 ; The Marine Ins. Co. v. Young, Id. 187; The U. S. v. Evans, Id. 280 ; The Marine Ins. Co. v. Hodgson, 6 Cranch 206 ; Welch v. Mandeville, 7 Cranch 152; Liter and al. v. Green, 2 Wheat. R. 306; Bare v. Gratz, 4 Wheat. R. 220; McCourry v. Doremus, 5 Halst. R. 245; and Wright v. Hollingsworth, 1 Peters’ U. S. R. 168. But they are not applicable to the question before us. Like many other cases that might be cited, they only show, that refusals to put off the trial of a cause on the usual affidavit; to grant a new trial; to set aside a non suit;. to receive an additional plea, or suffer an amendment; and generally the granting or refusing of applications to the mere discretion of the court, are not matters, upon which error can be assigned. So far therefore, as respects the rule on the plaintiff to pay the costs in thirty days, or be. non prossed, I readily concede, it is not the proper subject for review upon a writ of error. But having non prossed the [144] plaintiff, and thereby put him out of court, they had no right to recur to a verdict, which had been set aside, and had therefore no legal existence, and enter up a final judgment thereon against the plaintiff; thereby concluding his rights forever, on the merits of this case. They might have refused to set aside the verdict, and order a new trial; and no error could have been assigned on such refusal. But having granted the motion, and awarded a venire de novo, they could not at a subsequent term, revive the verdict, and render judgment thereon. 2d, But it remains to enquire, whether those intermediate proceedings are properly before ns, so that we' can take cognizance of them. I am not aware of any settled course of practice in this court, in relation to this matter. In the Kings’ Bench, the rule undoubtedly is, that upon the return of the writ of error, the plaintiff is to assign errors in the record: and if he intends to rely on defects, not apparent on the face of the record, he must also assign the particular matter for error, at the same time alleging diminution, and praying a certiorari to have it certified to the court: 2 Saund. 101, q. 2 in note; and cases there cited and reviewed. The form of such special assignment of error, and allegation of diminution, may be seen in Tidd's Append. 207; and in Burr v. Waterman, 2 Cowen's R. 36, 38 in note. The Supreme Court of New York, seem to have adopted the same practice. Rowen v. Lytle, 4 Cowen’s R. 91; Colden v. Knickerbocker, 2 Cowen’s R. 31 ; Cheatham v. Tillotson, 4 Johns. R. 499. The course pursued by the plaintiff in error, has been different. It is true, upon the return of the writ of error, he assigned the general error ; and also a special one stating that the court below, after ordering a non pros, had rendered a general judgment against him, on a verdict in favor of the defendant. But instead of praying a certiorari, he proceeded by rules on the court below, requiring them to certify the facts to this court. Had the defendant in error, objected to this course, before he pleaded in nullo est erratum, he might have prevailed; but by joining in error, he has confessed not the errors, but the facts, on which the error is assigned. The plea of in nullo est erratum, is in the nature [145] of a demurrer; it refers the matter at once to the judgment of the court, and supercedes the necessity of a certiorari. 1 Archb. Prac. 231, and seq.; 2 Tidd's Prac. tit. Error 1111, Id. 1118, 2 Saund. R. in note; 4 Cowen's R. 91, Id. 449; Harvey v. Rickett, 15 Johns. R. 87. In short, after joinder in error, neither party can all edge diminution, or have a certiorari; for it is an admission of the matters assigned for error. Yet it is a general rule, that at any time pending a writ of error, even after such plea pleaded, the court may ex-officio, award a certiorari, to supply any defect in the body of the record, or in its out branches; for though the parties are bound by their admissions, the court are not restrained from looking into the record. 2 Tidd’s Pr. 1118; Cromp. Pr. 270; 1 Str. 440; 1 Salk. 270, Id. 907; 2 Saund. 197. But it is unnecessary to pursue this enquiry farther. The error, if it is one, of entering judgment on the verdict, after it had been set aside, is confessed by joinder in error. Although this court will not draw into discussion, upon a writ of error, such orders as have been made upon application to the mere discretion of the court below, yet error may be assigned on such intermediate proceedings in a cause, not apparent on record, as show the final judgment to be erroneous. The books of entries furnish almost innumerable precedents of assignments of errors on such matters Lilly’s Ent. 221, 292. My opinion is, that judgment in this case should be reversed; and that the plaintiff be at liberty to carry his cause down to the Circuit, upon payment by him, of the costs of the former trial. Four» and Ryebsost Justices, concurred. Judgment reversed. Cited in Norcross v. Boulton, 1 Harr. 314 ; Sloan v. Somers, 3 Harr. 47 ; Parsell v. State, 1 Vr. 546 ; Bruck v. Carter, 3 Vr. 558.