Bissell v. Hamlin

13 Abb. Pr. 22

Opinion

By the Court.

Footnotes

•

*— Bosworth, Ch. J.

—On opening the papers when the argument of this case was moved, on the 17th day of May last, we were struck with the peculiar structure of the case as it had been resettled, and we declined to allow the argument to proceed then, and took the papers. Upon consideration, we found that the case had been resettled since the argument and decision of the appeals taken from the judgment of the 3d of August, 1857, that it had been resettled under the authority of orders made by this court, and that a reargument had been ordered upon the case as'resettled: we thereupon stated to counsel that a reargument would be heard, and that we considered the order directing a reargument opened the whole case, and that the parties would be heard on both appeals. Such reargument has now been had, and we are quite clear that upon the ease as settled, the judgment appealed from is erroneous.

The case, as resettled, contains the order of- this court, made February 21st, 1857, on granting a new trial-on an appeal from the judgment theretofore rendered in the action. That order, as printed, represents this court to have decided that the judgment which was the subj ect of that appeal should not only be reversed, but that the action should go back to the referee to be tried in part on the proofs already taken therein,.and that he should admit a paper marked Exhibit E as competent and ‘prima-facie evidence of the attendances and adjournments being had as thereon written. I am quite clear in my recollection that all the court decided was, that the judgment then appealed'from should be reversed and a new trial granted, unless the parties consented to an order that it go back to the referee on the proofs which had been taken. We think the concluding sentence of the opinion then delivered shows that such was the decision of the court.

The court then held ¡taper E admissible as evidence,,^upon the facts proved upon the first trial in respect to its having been in actual existence at the time the adjournments written upon it purport to have been made. But the court did not intend, as we think, to direct the referee to receive such paper without the same evidence was given to authorize him to do so, which the court had determined was sufficient to render it competent as evidence ; and we are quite clear that the court has no power, on reversing a judgment, to order it to retrial either wholly or in part on the evidence given on the previous trial.

Viewing the case, as resettled, as stating accurately what the court did decide in February, 1857, and as stating the actual proceedings had before the referee on the second trial (which resulted in the j udgment now appealed from), the referee admitted Exhibit E as evidence on the second trial because he considered hirngplf instructed by the general term order of February 21st, 1857, so to do. At the stage of the trial when it was so admitted, according to the case as resettled, no extrinsic facts in respect to it had been proved to make it competent as evidence, and its admission was excepted to. The general term order of February 21st, 1857, appears to have been produced on the second trial, by the plaintiff, and relied on as giving him the right, by its own force, to have Exhibit E admitted as evidence.

It is printed as part of the case as resettled, and the case states that the referee admitted it in evidence, as directed by said order.

The court, on affirniing (in July, 1858) the judgment from which the present appeals are taken, must have understood, as we think, that the order of February 21st, 1857, had been entered by consent; but the case, as it was resettled, does not show that it was so entered, and we think that the order, if it is to be regarded as expressing the decision actually made, is erroneous—that the court had no authority to order peremptorily, that the cause be sent back to the referee on the evidence given on the first trial, and that the referee admit Exhibit E as evidence on the second trial. We also think that the fact that the referee admitted it as evidence on the second trial, in consequence of the direction contained in such order, does not exempt his decision from the objection that it was wrong.

We agree that the judgment entered July 2d, 1858, on the argument of the 'present appeals, must be reversed, a new trial granted, and that the order of reference heretofore entered be vacated: and an order to that effect will be entered.

Present, Boswouth, Ch. J., Piekreeont and MoS'Oriej?, JJ.