Ross v. Garey , 8 Miss. 47 ( 1843 )

Per Curiam.

The appellant had obtained judgment against one M. M. Garey and others, and sued out his execution, which was levied on negroes, which were claimed by the appellee as his property. At October term, 1839,. of the circuit court of Carrol county, an issue was made up to try the right of property, which resulted in a verdict for the appellant. A motion was made for a new trial, which it is said was taken under advisement by the judge, and granted in vacation. The second trial resulted in a verdict for the claimant, and this appeal was taken. It is conceded by the appellee’s counsel, that a new trial must be granted, because on the last trial there were but eleven jurors. But the appellant’s counsel contend for more than this. They insist that the first new trial was improperly granted, for which reason the judgment of the court in granting it should be reversed, and the first verdict reinstated. We must consequently determine whether the record will bear them out in this position.

The record is very defective, and no concessions are made by either party. The appellee’s counsel have relied much upon grounds which may seem to be technical, but which cannot for that reason be disregarded, if their view is sustained by the record. We must lop off from the record such of the documents as do not properly belong to it, and we shall then have the case placed in its true legal aspect.

The record begins by a recital of the term and the party’s names and the nature of the proceeding. Then follows the execution, which is the first item in the list of objections. It is said that it was but a matter of evidence, and should have been set out in the bill of exceptions. On the other hand, it is contended that it was not incumbent on the appellant to introduce it. We think, however, to say the least, the execution was a necessary part of the evidence. This proceeding is assimilated by the statute to the action of detinue, and the onus lies on the plaintiff in execution. It was necessary that he should produce evidence of his right to proceed against the property, before the claimant could be put,on his defence. We also think that the execution should have been spread out in the bill of exceptions, and that as this was not done, it cannot, under the decisions we have heretofore made, be regarded as a part of the record.

Then come the issue, the verdict and judgment for the plaintiff in execution, and a motion for a new trial by the claimant. These we must regard as part of the record, but the affidavit in support of the motion is improperly placed on the record, not being included in the bill of exceptions.

Next follows an opinion of the court, which it is said was delivered in vacation, which is probably true, as it bears date on the 11th of November, 1839, the court having been held in October. This decision purports to grant a new trial in the case, although the judge says that he believes the verdict was right. For the appellee it is insisted that this opinion was not given because the case was taken under advisement, but- merely because the judge wished to have his written opinion on file. On the other hand, it is insisted that the judge took the case under advisement and granted the new trial in vacation, as it is said improperly. If this is the decision by which the new trial was granted, it was irregular. The statute, it is true, authorizes the circuit judges under certain circumstances to take cases under advisement, and deliver their judgments in vacation, within four months. This is a power conferred by the statute, and -the record should show that it was exercised in virtue of the grant of power. A memorandum should be made on the record that the case was taken under advisement, otherwise it would only appear as a decision or judgment in vacation. Without an entry of this sort, no judgment could be suspended. If in this case the judge took time to advise, and made no order to that effect, the motion for á new trial expired-with the term, and Ross had an undoubted right to enforce his judgment. As we cannot krtaw that this case was taken under advisement, this opinion has no place on the record.

Following this opinion of the'judge is a bill of exceptions, setting out the evidence, which" begins by stating that the court granted a new trial, and that Ross prayed an appeal, and that the evidence might be taken down. After stating the evidence and the charges given, it concludes by stating that Ross excepted to the decision r. granting a new trial, and prayed an appeal, and that the evidence be taken down, which was done, and it bears date on the 1 '< th day of October, 1839, which was some time previous to tb' date of the w’ itten decision, and must have been during the nme at which the first verdict was rendered, it having commenced on the second hionday of October. This sustains the construction of the record contended for by the appellee’s counsel, that the new trial was granted at the term the verdict was rendered. This is probablv not the true history of the case, and yet it would be a dangerous precedent to consider as part of the record matters which technically do not belong to it, and which have not been placed on it by bill of exceptions.

The record of the first trial, then, consists of the issue, the verdict, the motion for a new trial, and a bill of exceptions taken to the opinion of the court in granting a new trial, all of the same term. On this state of the case it is insisted that we should reverse the judgment granting a new trial, and give the appellant the benefit of his first verdict. We should feel but little hesitancy in doing so, but for the defect in the bill of exceplions in omitting to set out the execution, which we regard as a material part of the appellant’s evidence. If this had been set out, the propriety of the verdict would have been apparent. Indeed, the state of the case would not, on legal principles, have justified a different verdict. We cannot doubt but what the execution was read; still it does not legally so appear. This operates as a hardship on the appellant, by compelling him to re-try the case, after having obtained a verdict in his favor in accordance with the law and the evidence. We remand the case with some degree of reluctance, inasmuch as it displays strong evidences of a contrivance which is not entitled to the favorable consideration of the law. Subsequent investigation, however, may possibly explain away these suspicious circumstances.

New trial granted.