Full text
James Ray v. Lindsey McCary
Mr. Justice FisheR
delivered the opinion of the court.
In this case there have been three verdicts in succession for the defendant in the court below, and two new trials granted to the plaintiff.
The cause is now before us upon a writ of error to the judgment on the third verdict for the defendant,, and it is assigned as error, that the court erred in refusing to grant a new trial and to set aside this verdict.
The statute declares that no more than two new trials shall be granted to the same party in a cause. Hutch. Code, 876. This settles the question. The court had no authority to entertain the third motion. It was unnecessary for him to hear what he was required by the law, under all circumstances, to refuse.
Having no power to hear the motion, hé, for the same reason, had no power to make a bill of exceptions on refusing to grant the new trial.
[408] A bill of exceptions taken to the decision of the court upon a motion granting or refusing a new trial, is intended to present the single question, whether the action of the court in this respect was correct. It can present no question, except such as the court could consider on this motion. ■
Our decision, therefore, is, that however erroneous the verdict may be, when compared with the evidence, it cannot be reviewed by the circuit court after two new trials have been granted to the unsuccessful party.
If the court shall err as to the law on the trial, the party should, at the time, except, and make his exceptions part of the record, and if it shall appear upon looking into the record thus made, that the court below erred as to the law, this court will reverse and award a venire de novo according to the practice previous to the statute of 16th December, 1830, Plutch. Code, 885, and according to the practice now in all cases, where no motion for a new trial was made, and the exception was taken on the trial to the ruling of the court.
The bill of exceptions in this case being part of the record for but one purpose, of enabling this court to review the action of the court on the motion for the new trial; and without the bill of exceptions, no error appearing in the record, we affirm the judgment.