Ellis v. Ginsburg , 163 Mass. 143 ( 1895 )

Barker, J.

The record before us shows abundant power in the justice of the Superior Court to set aside the verdict and to order a new trial. Under Pub. Sts. c. 153, § 6, “ The courts may, at any time before judgment in a civil action, set aside the verdict, and order a new trial, for any cause for which a new trial may by law be granted.” This power may be exercised by the court of its own motion; and while in acting upon motions for a new trial made by parties to the cause the court must conform to the rules of the court and to the settled principles of law, the pendency of a motion for a new trial made by a party does not annul or suspend the power of the court, upon its own motion, to set aside the verdict and order a new trial for any cause for which a new trial may by law be granted. So in the present case, assuming that the judge could not grant the defendant’s motion to set aside the verdict because contrary to the evidence for the reason that Rule 46 had not been complied with, and that he could not grant the defendant’s motion to set aside the verdict because of newly discovered evidence, for the reasons that the evidence was not in the legal sense newly discovered, or was cumulative, or was in contradiction of the defendant and his other witnesses, or because the failure to produce it at the trial was not accounted for or excused, or for other like reasons, nevertheless if in dealing with those motions the judge became convinced that legal grounds existed for ordering a new trial, and did for that reason alone set the verdict aside and order a new trial, he was justified in so doing upon his own motion, and, if he bad evidence before him from which he could find facts which made a “ cause for which a new trial may by law be granted,” it is immaterial how he may have ruled in answer to the requests made in the hearing of the defendant’s motions. A new trial may by law be granted where the court “ is satisfied that, by reason of some accident, mistake, or misfortune in the conduct of the trial, a new trial is necessary to prevent a failure of justice.” Greene v. Farlow, 138 Mass. 146. Cutler v. Rice, 14 Pick. 494. De Giou v. Dover, Anst. 517. Richardson v. Fisher, 1 Bing. 145. The statements of the bill of exceptions show abundant reason to justify the judge in finding upon the affidavits and his own knowledge of the trial such mistake and misfortune. It is not stated that he granted the defendant’s motion, and it is the fair inference from the bill of exceptions that the presiding justice acted independently of that motion in setting the verdict aside.

Exceptions overruled.