Brown v. Bradley

6 App. D.C. 207, 1895 U.S. App. LEXIS 3585

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 6, 1895
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

The argument of the petitioners is that, under the rules of the Supreme Court of the District of Columbia, the bill of exceptions might have been properly tendered at any time during the term at which judgment was entered, and that it was useless to tender it before the motion for a new trial was determined; that the motion for a new trial in this case was determined and judgment entered at the January term of 1895 ; and that their bill of exceptions was tendered before the end of that term. On the other hand, the contention of the counsel for the caveatees, who appear here in opposition to the application for the writ, is that the bill should have been presented at the term at which the trial was had, and that it was too late to present it after the expiration of that term. They argue also that the question was one for judicial determination by the justice below, and that from that determination no appeal will lie by way of a writ of mandumus, inasmuch as it involves something more than a merely ministerial duty, which alone can be compelled by writ of mandamus.

The rules of the Supreme Court of the District of Columbia, the construction of which is involved in this controversy, are its common law rules numbered 53, 54, 55 and 56. These are as follows :

“ 33. Every motion for a new trial must be made within four days after verdict; and shall be in writing, and shall state, in separate paragraphs, successively numbered, the specific grounds upon which it is based, and it shall be entered on the minutes of the court on the day it is presented to the court.

“ Sec. 2. Judgment shall not be entered on the verdict until the fifth day thereafter or if a motion in arrest of judgment or for a new trial shall be made, until after the ruling of the court on that motion.

“ Sec. 3. All motions for new trials not heard and decided at the term at which the same shall have been made shall be deemed to have been overruled, and shall be so entered on the proceedings of the last day of the term, unless the motion has been continued by special order of the court.

“ 54. If a party desires to present for a review in the Court of Appeals the rulings or instructions of the presiding justice for alleged errors of law, he must, at the trial, and before the jury retire to consider their verdict, except to such rulings or instructions ; and he may, at the time of taking exception, reduce the same to writing in a formal bill of exceptions, or the justice may enter the exception upon his minutes and proceed with the trial, and afterwards settle the bill of exceptions.

“Sec. 2. The bill of exceptions must be settled before the close of the term, which may be prolonged by adjournment in order to prepare it, but not longer than thirty days.

“Sec. 3. Whenever the justice who tried the cause shall consider it proper, several exceptions to the rulings shall be inserted in one bill of exceptions to be signed at the close. And the instructions granted by the court, whether excepted to or not, shall be inserted in the bill of exceptions.

“55. Every bill of exceptions shall be drawn up by the counsel of the party tendering it and submitted to the counsel on the other side ; and where the bill of exceptions is not settled before the jury retires the counsel tendering the bill of exceptions shall give notice in writing to the counsel on the other side of the time at which it is proposed that the bill of exceptions shall be settled, and shall also, at least three days, Sundays exclusive, before the time designated in such notice, submit to the counsel on the other side the bill of exceptions so proposed to be settled; and if they cannot agree it shall be settled by the justice who presided at the trial, and in that case the justice shall be attended by the counsel on both sides, as he may direct.

“ 56. In case the justice is unable to settle the bill of exceptions, and counsel cannot settle it by agreement, a new trial shall be granted.”

The present common law rules of the Supreme Court of the District of Columbia, which include the foregoing, were adopted and promulgated by that court at its January term of 1894, in order to conform to changed conditions occasioned by the establishment of this Court of Appeals in the preceding year. These rules were made in pursuance of the authority specially conferred on that court by the act of Congress creating it (Rev. Stat. U. S. for Dist. of Col., Sec. 770), and of the authority inherent in every court of general jurisdiction to make all proper and reasonable rules for the regulation of its practice. It is not claimed that the rules, which have been specially cited, are in any manner derogatory of common right, or unduly restrictive, or that they at all violate the right given by law to parties to remove their causes to this court by appeal. The only question before us is as to their proper construction.

The counsel for the petitioners are greatly in error when they assume that this couit will review the decision of the court below in overruling a motion for a new trial. We have repeatedly held that this we are not permitted to do by the act of Congiess creating this court. It has been repeatedly, and we may say uniformly, held that motions for new trials are addressed to the discretion of the judges holding the trial courts, and their decisions may not be reviewed in purely appellate tribunals. Wherever such review' is allowed, it is under special statutory provision authorizing it; and such provisions existed in all the cases cited on this point in the brief for the petitioners. Those cases can, therefore, have no bearing whatever upon the authority of this court in the premises.

We have held that, when a motion for a new trial has been made in the court below, the right of appeal to this court accrues only when that motion has been disposed of. * For by the act of its creation this court can only review the final orders, judgments, or decrees of the court below; and by the common law and the rules of the court below, there can be no final judgment in a cause at common law until a pending motion for a new trial is determined.- But' that does not make the ruling of the court below on that motion a subject for review by this court. It simply determines the point of time in the course of the cause at which the right of appeal accrues.

Inasmuch, therefore, as we cannot review the action of the court below in overruling a motion for a new trial, it is useless to except to such ruling and wholly unnecessary to include that ruling in a bill of exceptions. Consequently, the contention on behalf of the petitioners that the bill of exceptions could not be properly prepared before the overruling of such motion, so as to conform to the suggestion of our rule that all the exceptions should be included in one bill, if practicable, is entirely untenable. Moreover, if the claim of the petitioners were well founded that they had a right to an exception to the ruling of the Orphans’ Court, in denying their motion in arrest of judgment, this would be a case where it would not be practicable to include all the exceptions in one bill. ■ It would be manifestly improper to require the justice holding the circuit court to certify as to the action of the justice holding the orphans’ court, with which he had nothing whatever to do.

At common law, and in the absence of statutory provision giving the right of appeal from the action of trial courts in overruling motions for new trials, the bill of exceptions has no connection whatever with the motion for a new trial. The one is not in any way dependent upon the other. At common law, the bill of exceptions was actually settled, signed and sealed at the time of trial, and when the exception was taken ; and the progress of the trial was arrested until the bills were so settled, signed and sealed. Nor was the jury permitted to retire to deliberate upon their verdict until all the bills of exceptions were so disposed of. Theoretically it is presumed that this course is yet pursued ; and all bills of exceptions purport to have been signed and sealed before the retirement of the jury for deliberation. The inconvenience of the practice has resulted in the establishment of a usage sanctioned by universal custom and embodied in the rules of practice of most courts, as we find it embodied in one of the rules of the Supreme Court of the District of Columbia which has been cited, to the effect that, if the exceptions are duly taken at the time, the formal bill may be settled, signed and sealed at any time after-wards during the term, even then the requirement being that it should be done, as the expression is, nunc pro tunc.

The purpose of the bill of exceptions is to prepare the cause for the appellate court, and to lay the foundation for the action of that court by the incorporation of the rulings of the court below into the record. The purpose of the motion for a new trial is to appeal to the court which tried the cause against the action of the jury in disregarding the weight of evidence, for misconduct of the jury, or on the ground of newly discovered evidence, or on various other grounds wholly disconnected with the rulings in the case. This motion assumes the absolute correctness of those rulings, and disregard of them as the ground upon which it is most frequently based. It is true that it is not unusual in a motion for a new trial to call attention to supposed errors in the rulings of the court during the trial; and the trial justice may, in the determination of that motion, grant a new trial solely and exclusively upon the ground that he has committed error in his rulings. But it is always matter of grace, and not matter of right, to assign such alleged error as ground for a motion for a new trial addressed to the discretion of the presiding justice. It might be a convenience to counsel to postpone the preparation of their bills of exceptions until their motions for a new trial are disposed of; but it would rarely be fair to the trial court so to postpone them. And as there is no logical or legal connection whatever between the two, we cannot permit a consideration of such occasional convenience to dominate and control the operation of reasonable rules of practice made for the general convenience of the orderly transaction of the business of the courts.

As we have intimated, the only question which we can regard as really in controversy in this cause, is whether the term at which a bill of exceptions must be settled is the term at which the trial was had, or the term at which the judgment was entered, if the entry of judgment was postponed by the postponement of a motion for a new trial to a subsequent term. To us it appears very plain that this question was decided correctly by the learned justice below. When Rule 54, heretofore cited, requires the settlement of the bill of exceptions "before the close of the term¡’ it necessarily means the term referred to in the preceding section of the same rule, the term in which the verdict was had, the term in which the trial was had, the term at which it should have been by the common law strictly and theoretically settled. The only term, therefore, in contemplation of the rule, at which it could be settled is the trial term.

If there were any doubt whatever about this, the doubt would be removed by the provision in the rule, that for the purpose of settling a bill of exceptions, the term may be prolonged for a period -not to exceed thirty days, while a motion for a new trial might be prolonged from term to term, almost without practical limit. But we have no doubt upon the subject. The inconvenience, the delay, and the uncertainty that would follow from the construction of the rule claimed by the petitioners would result in nothing but confusion in the administration of justice.

If the petitioners have misapprehended the effect of the rule and have thereby lost their right of appeal, and their appeal is based upon substantial grounds, such result is greatly to be regretted. But neither the rule itself, nor the practice of the court below, so far as we are advised, was sufficiently doubtful to mislead the parties into the course which they pursued.

It is proper that we should add, that, in our opinion, the cases of Chateaugay Ore and Iron Company, 128 U. S. 544; Muller v. Ehlers, 91 U. S. 249, and United States v. Breitling, 20 How. 253, do not support the contention of the petitioners. In the first and last of these cases the judgments were rendered at the same terms at which the trials were had; and no such question arose, or could arise, as is here presented to us ; and in the other case, that of Muller v. Ehlers, where possibly the question might have arisen, the writ of mandamus was refused on other grounds ; and it is not apparent how the case can be an authority in favor of the petitioners.

On the whole we are of opinion that the petitioners were too late when, on March 21, or April 1, 1895, they presented their bill of exceptions which has been mentioned; .and that the justice, who presided at the trial of the cause, was justified in his refusal to sign or seal the bill at that time. Being of that opinion, we must decline to issue the ■writ of mandamus, as requested by the petitioners; and their petition therefor must be dismissed with costs. And it is so ¿ordered.