Opinion
Cause argued June 23d 1869
Decided September 25th, 1869
E.G. Lapham, for the appellants.
Edwin Allen, for the respondents.
JAMES, J., read an opinion for reversal of the order on the ground: 1st. That the General Term had no power to make the original order giving leave to the defendant to move at the Special Term for a new trial. 2d. That such motion could not be made at the Special Term, after judgment final on the verdict; and 3d. That the order was wrong on the merits.
GROVER, J., read an opinion for affirmance on the ground that the order was right on the merits, and that a case having been properly and regularly made before judgment, the motion could be properly entertained at Special Term, if that court saw fit, after judgment on the verdict; though not after absolute affirmance thereof at the General Term; but that the action of the General Term in this case, ought not to be construed as an absolute affirmance, but rather a dismissal of the appeal, except as to costs.
MASON, MURRAY and DANIELS, JJ., concurred, that a motion for a new trial on a case could be made at Special Term after judgment; but MASON and MURRAY, JJ. thought the propriety of such an order not reviewable here on the merits.
WOODRUFF, J., thought, 1st. That the Code has not altered the rule, well settled before the Code, that a motion for a new trial on a case could only be made before final judgment. 2d. That there is, nevertheless, in the Supreme Court, inherent power and control over its own judgments. So that, under special circumstances of mistake or misfortune, where justice requires it, the court has power to vacate the judgment in order to relieve a party from the technical difficulty, and when they do so, this court cannot pronounce it error in law. So, for the benefit of the prevailing party, if he so elect, they may suffer the judgment to stand, provisionally, as security pending the motion, c., as is often done where after judgment by default the defendant is permitted to plead or answer, 3d. When a party, instead of moving for a new trial, on the ground that the verdict is against evidence, submits to judgment, and goes by appeal to the General Term, and the judgment is there affirmed, he is concluded. The right to move for a new trial at Special Term is at an end. But, if the General Term see fit to quality their affirmance, so as in effect to make it provisional to enable the party to make his motion for a new trial at Special Term, holding the judgment meantime as security to the prevailing party, and the Special Term do in fact permit the motion to be made, and grant a new trial, this court, however irregular it may deem such a practice to be, cannot say that any question of law is thereby presented to this court for review. 4th. The Code has conferred the right of appeal from an order granting a new trial, but this does not bring the facts under consideration in this court, so that we can inquire whether the verdict of the jury is against evidence. On appeal even from an order granting a new trial, after the verdict of a jury, questions of law only are to be considered in this court (otherwise after trial by court or a referee, when an order of reversal states that the reversal is on questions of fact). There is, therefore, no question before us in this case, on this appeal, which we can review. 5th. The court in such case may, perhaps, have jurisdiction to affirm, but the more appropriate order is to dismiss the appeal on the ground, that it presents no question of law for our determination.
HUNT, Ch. J., thought the question one purely of practice, and not reviewable here.
LOTT, J., was also for dismissal of appeal.
For affirmance, GROVER and DANIELS, JJ.
For reversal, JAMES, J.
For dismissal of the appeal, HUNT, Ch. J., WOODRUFF, MASON, MURRAY and LOTT, JJ.
Appeal dismissed.