Citation Numbers: 30 How. Pr. 4
Judges: Miller
Filed Date: 12/15/1864
Status: Precedential
Modified Date: 1/12/2023
A point is taken by the respondents’ counsel, that the appeal from the judgment of nonsuit directly to this court, without first moving for a new trial in the county court, brings up no exceptions made upon the trial which this court can review. In the case of Carter agt. Wisner (27 How. Pr. R. 385), which arose in the fifth judicial district, it was held at general term that a new trial must be moved for in the county court, before an appeal can be taken' on a case or bill of exceptions in that court to the supreme court. A contrary decision was made by the general term of the sixth judicial district, in Monroe agt. Monroe (21 How. Pr. R. 208), thus making a conflict of authority upon the question now raised.
It is perhaps not very material in the present case, to decide what the practice was in such cases before the new constitution went into operation, but I am inclined to think that although the court of common pleas had the power to grant new trials to a defeated party (2 R. S. § 208, sub. 2), yet the usual course was to have the bill of exceptions made a part of the judgment record, and then remove the record by writ of error to the supreme court (2 R. S. 423, § 78). To determine what the law now is, and what practice should prevail in a case like this, it is essential to examine the enactments made by the .Code of Procedure, which have a bearing upon the subject. By the thirtieth section of the Code, the county court has power to grant new trials, or affirm, modify or reverse judgments in actions
In Monroe agt. Monroe (27 How. 208), Balcom, J., who wrote the opinion, lays considerable stress upon the thirty-sixth section of the judiciary act of 1847, which provides, that all laws relating to courts of common pleas and their proceedings, powers and duties, so far as consistent with the constitution of 1846, and the statutes since passed, shall be applicable to county courts, and the learned judge says, that all difficulty upon the subject is obviated by this
My conclusion, therefore, is, that the plaintiff should have first applied to the county court for a new trial, and if it was there refused, then he should have brought his appeal to this court. As he is premature, the appeal must be dismissed, and for this reason it is not necessary to examine the other questions presented.
Appeal dismissed.
I concur, C. It. Ingalls.
Peckham, J., dissented. Would be a good law, but better let the legislature pass it.