Sargent, J.
The first ground taken by defendant in error-, on his motion to quash is, that in this class of cases, error does not lie. That the proceeding being entirely by force of special statute,, is not [522]*522a proceeding according to the course of the common law, and therefore that certiorari should have been the form of proceeding instead of error..
What are the statute provisions applicable to this case? Secs. 1 & 2 of chap. 189, Genl. Stats., prescribe the jurisdiction of this court at the law terms, while sec. 3 does the same at the trial terms, as follows: “At the trial terms they shall take cognizance of civil actions and pleas, real, personal .and mixed, according to the course of the common law,” &c. Sec. 4 then provides that “ in civil actions the court shall try the facts in controversy and assess the damages, if the parties so elect, and judgment rendered on such trial shall be conclusive as if rendered on the verdict of a juryand sec. 5 provides that “ the decision of the court in such case, shall be in writing, if either party so requests, stating the facts found and the conclusions of law upon them, which shall be filed and recorded, and either party may except to any ruling or decision of the court in matters of law in the same manner and with like effect, as upon a 'trial by jury.”
Now the question is, whether the substitution of the court for the jury, to settle the questions of fact, by agreement of parties, so far changes the nature of the whole proceeding, that it is no longer “ a civil'action or plea” prosecuted “according to the course of the common law?” The writ is the same; the service the same; the entry in the court the same ; the defendant’s appearance the same ; the pleadings the same; the issue joined is the same; and, after verdict, the judgment must be the same ; and shall have the same effect, as though rendered upon a verdict of the jury ; and provision is made, that either party requesting it, shall have the decision in writing, and may except to any ruling or decision of the court in matters of law, in the same manner, and with the same effect, as upon a trial by jury.
When all these facts are considered, and also the fact that it is only by agreement of the parties, that this change can be made, and that all the proceedings, both before and after trial,'are to be the same in both cases, we are satisfied that this arrangement of the parties as to the trier of the facts, does not change the nature of the proceeding any more than it does the form, and was not designed to change either.
It is a sufficient answer to this suggestion, that if by this agreement of the- parties, and this trial of the facts by the court instead of a jury, the proceeding is changed so as to be no longer a “ civil action or plea according to the course of the common law,” then the court at the trial term would no longer have jurisdiction of the case, because it clearly does not come under any of the other heads enumerated in sec. 3, and unless it continues to be what it was when it ■was commenced, viz., a civil action or plea, according to the course of the common law, the court would cease to have jurisdiction of the .same at the trial term, because it is only as such an action or plea, that the court at that term has any jurisdiction of the case. This position of the defendant in error is not well taken.
[523]*523A writ of error would be the proper remedy iu a case tried by the court, uuder secs. 4 & 5 in all cases, where it would be the remedy if the same case had been tried by the jury, instead of the court. The court was substituted for the jury in this case, to try the facts, by express agreement of the parties ; but while the court thus settles the questions of fact, in the capacity of a jury, still the judge retains all his powers as judge in questions of law, * and may exercise the same discretion in allowing or limiting costs, that he might before, so that while acting as a jury, to try the facts, he has no power over the costs, either to allow or disallow, or limit, yet as judge, he may pass upon the question of costs.
And while the judge who thus acts in the double capacity of judge and jury has, and may exercise all the powers both of the judge and jury, still he has no powers in addition to those which the court and jury have in any ordinary case. Having premised thus much, in relation to the powers and duties of the judge, who acts as judge and jury both, in the trial of a cause, let us look at the verdict iu this case, and see how much of it is a finding upon questions of fact, and what part of it is simply a ruling upon questions of law, or the exercise of the discretion vested in the court.
So far, as the limiting of the original plaintiff's costs is concerned, that was a matter within the discretion of the court, as a court, and had nothing to do with the finding of the facts, and no exception would lie to the ruling of the court, upon a matter like this, which is placed by law in the discretion of the court, and it seems equally well settled, that a writ of error will not lie in such a case. Rochester v. Roberts, 29 N. H. 360, 368.
To this part of the verdict, then, there could be no exception, and there was no error. And if there had been error in this, the plaintiffs in review being the original defendants, would hardly insist upon having that corrected, and being compelled to pay full costs, instead of the limited amount fixed by the judge who tried this cause. That is not one of the errors assigned, in this case.
The other part of the verdict (omitting now the conditional portions of it) is “that said Towle recover of said Fowler & als. one dollar as damages for the caption and detention of said bell mentioned in his declaration.” As there was no request to state in writing either the facts found, or the conclusions of law upon the facts in the case, by either side, we think this finding is plain, intelligible and explicit enough, to answer the requirements of the law.
In order to reach that conclusion, the facts found must have been, that the bell in question belonged to Towle, and as he had taken the bell into his possession upon the replevin writ, all ho could recover would be the damages for the wrongful taking and detention of it, and that is, what he does recover by this verdict and judgment. This is such a finding that judgment may be properly rendered upon it.
[524]*524Up to the time the case was submitted, we may assume that no exceptions were taken either to the rulings of the court on matters of law or the admissibility of evidence; because if there had been, the court would have been requested to make its decision in writing, so that the exceptions might be saved, and considered. But it is said, that the final verdict was returned in vacation, iu the absence of the parties and their counsel, when no objection could be made, and no exception taken.
While it is true, that the verdict was thus returned in vacation, it also appears from the record that at May term, 1868, the case was continued nisi, to be heard at Freedom by the court, and judgment was to be rendered as of that term, by the agreement of parties. Now, if this was all agreed to by the parties, whoso fault was it that there was no chance to object, no right reserved to file exceptions, and no time given for that purpose ? Such an agreement without reserving such right or opportunity must be held to be a waiver of the right.
Free access — add to your briefcase to read the full text and ask questions with AI
Sargent, J.
The first ground taken by defendant in error-, on his motion to quash is, that in this class of cases, error does not lie. That the proceeding being entirely by force of special statute,, is not [522]*522a proceeding according to the course of the common law, and therefore that certiorari should have been the form of proceeding instead of error..
What are the statute provisions applicable to this case? Secs. 1 & 2 of chap. 189, Genl. Stats., prescribe the jurisdiction of this court at the law terms, while sec. 3 does the same at the trial terms, as follows: “At the trial terms they shall take cognizance of civil actions and pleas, real, personal .and mixed, according to the course of the common law,” &c. Sec. 4 then provides that “ in civil actions the court shall try the facts in controversy and assess the damages, if the parties so elect, and judgment rendered on such trial shall be conclusive as if rendered on the verdict of a juryand sec. 5 provides that “ the decision of the court in such case, shall be in writing, if either party so requests, stating the facts found and the conclusions of law upon them, which shall be filed and recorded, and either party may except to any ruling or decision of the court in matters of law in the same manner and with like effect, as upon a 'trial by jury.”
Now the question is, whether the substitution of the court for the jury, to settle the questions of fact, by agreement of parties, so far changes the nature of the whole proceeding, that it is no longer “ a civil'action or plea” prosecuted “according to the course of the common law?” The writ is the same; the service the same; the entry in the court the same ; the defendant’s appearance the same ; the pleadings the same; the issue joined is the same; and, after verdict, the judgment must be the same ; and shall have the same effect, as though rendered upon a verdict of the jury ; and provision is made, that either party requesting it, shall have the decision in writing, and may except to any ruling or decision of the court in matters of law, in the same manner, and with the same effect, as upon a trial by jury.
When all these facts are considered, and also the fact that it is only by agreement of the parties, that this change can be made, and that all the proceedings, both before and after trial,'are to be the same in both cases, we are satisfied that this arrangement of the parties as to the trier of the facts, does not change the nature of the proceeding any more than it does the form, and was not designed to change either.
It is a sufficient answer to this suggestion, that if by this agreement of the- parties, and this trial of the facts by the court instead of a jury, the proceeding is changed so as to be no longer a “ civil action or plea according to the course of the common law,” then the court at the trial term would no longer have jurisdiction of the case, because it clearly does not come under any of the other heads enumerated in sec. 3, and unless it continues to be what it was when it ■was commenced, viz., a civil action or plea, according to the course of the common law, the court would cease to have jurisdiction of the .same at the trial term, because it is only as such an action or plea, that the court at that term has any jurisdiction of the case. This position of the defendant in error is not well taken.
[523]*523A writ of error would be the proper remedy iu a case tried by the court, uuder secs. 4 & 5 in all cases, where it would be the remedy if the same case had been tried by the jury, instead of the court. The court was substituted for the jury in this case, to try the facts, by express agreement of the parties ; but while the court thus settles the questions of fact, in the capacity of a jury, still the judge retains all his powers as judge in questions of law, * and may exercise the same discretion in allowing or limiting costs, that he might before, so that while acting as a jury, to try the facts, he has no power over the costs, either to allow or disallow, or limit, yet as judge, he may pass upon the question of costs.
And while the judge who thus acts in the double capacity of judge and jury has, and may exercise all the powers both of the judge and jury, still he has no powers in addition to those which the court and jury have in any ordinary case. Having premised thus much, in relation to the powers and duties of the judge, who acts as judge and jury both, in the trial of a cause, let us look at the verdict iu this case, and see how much of it is a finding upon questions of fact, and what part of it is simply a ruling upon questions of law, or the exercise of the discretion vested in the court.
So far, as the limiting of the original plaintiff's costs is concerned, that was a matter within the discretion of the court, as a court, and had nothing to do with the finding of the facts, and no exception would lie to the ruling of the court, upon a matter like this, which is placed by law in the discretion of the court, and it seems equally well settled, that a writ of error will not lie in such a case. Rochester v. Roberts, 29 N. H. 360, 368.
To this part of the verdict, then, there could be no exception, and there was no error. And if there had been error in this, the plaintiffs in review being the original defendants, would hardly insist upon having that corrected, and being compelled to pay full costs, instead of the limited amount fixed by the judge who tried this cause. That is not one of the errors assigned, in this case.
The other part of the verdict (omitting now the conditional portions of it) is “that said Towle recover of said Fowler & als. one dollar as damages for the caption and detention of said bell mentioned in his declaration.” As there was no request to state in writing either the facts found, or the conclusions of law upon the facts in the case, by either side, we think this finding is plain, intelligible and explicit enough, to answer the requirements of the law.
In order to reach that conclusion, the facts found must have been, that the bell in question belonged to Towle, and as he had taken the bell into his possession upon the replevin writ, all ho could recover would be the damages for the wrongful taking and detention of it, and that is, what he does recover by this verdict and judgment. This is such a finding that judgment may be properly rendered upon it.
[524]*524Up to the time the case was submitted, we may assume that no exceptions were taken either to the rulings of the court on matters of law or the admissibility of evidence; because if there had been, the court would have been requested to make its decision in writing, so that the exceptions might be saved, and considered. But it is said, that the final verdict was returned in vacation, iu the absence of the parties and their counsel, when no objection could be made, and no exception taken.
While it is true, that the verdict was thus returned in vacation, it also appears from the record that at May term, 1868, the case was continued nisi, to be heard at Freedom by the court, and judgment was to be rendered as of that term, by the agreement of parties. Now, if this was all agreed to by the parties, whoso fault was it that there was no chance to object, no right reserved to file exceptions, and no time given for that purpose ? Such an agreement without reserving such right or opportunity must be held to be a waiver of the right. Both parties by that agreement, seemed to trust to their good luck in obtaining a favorable verdict, asking for no time or opportunity to make objections, and not even requesting the finding of the court to be in writing, so that they might thus have the chance, to take exception. We cannot see how there could well be a more conclusive waiver of all right to object or except, than such an agreement as this would constitute.
It was held in Peebles v. Rand, 43 N. H. 337, 342, that by the law of 1855, to remodel the judiciary, sec. 17, “ it was designed to change the practice of the court in regard to writs of error, and to substitute for them a more simple and expeditious mode of obtaining a final decision upon questions of law arising at the trial terms, thus limiting the occasion for writs of error, to those cases where the party has no opportunity of taking exception at the time.”
And the General Statutes have not only substantially re-enacted that section 17, but have gone, if possible, a step further in the same direction, by enacting iu sec. 10 of ch. 189, that such bill of exceptions may be entered by the party excepting, upon the docket of the court at the next law term for the county, and the questions arising thereon shall be considered and determined, as upon a writ of error, or other proper process, for bringing the same before the whole court for decision,” thus showing that the design was, to substitute the, bill of exceptions, not only for the writ of error, but also for the writ of certiorari in cases where that had been considered to be the proper process for bringing errors before the whole court for decision.
As we understand the history of this case, the plaintiffs in error made no movement towards suing out this writ of error, so long as the judgment stood undisturbed on this part of the verdict, which we have been considering. They gave notice of their intention to review, and thereupon this defendant, the original plaintiff, had. his case brought forward and had judgment rendered for full costs against these plaintiffs, then defendants ; whereupon these plaintiffs, in addition to their review, brought also this writ of error to correct [525]*525that judgment. "Whether they would have brought error, but for that second judgment, is immaterial, since we hold that if they had done so, they could not have maintained it.
Let us next consider the remaining or conditional portion of the verdict in this case. It will be observed, that the finding of the court is in three separate and distinct parts ; the first and, third relate to the same subject-matter; the first, the finding of one dollar damages and the limiting the costs to one dollar; the third, ordering a judgment on that finding, according to its terms. These, too, are consistent with each other, and are perfect in themselves, and each is signed separately, and neither of them contains anything, as matter of fact, which the presiding judge might not properly find, acting in place of a jury, or as matter of law, which the same judge acting as court, might not properly do and order.
But the second or conditional part of the verdict is all inconsistent with the other findings, it is all conditional, not upon the law or facts of the case, but upon the future conduct of the parties, and was intended to be held over both parties, as it would seem, in terrorem, in order to induce them to abide by the first award, and submit to the judgment, which was ordered thereon. This portion of the verdict is entirely separate from all the rest, and is signed separately.
Whence did the presiding judge, who tried this cause, derive his power to make orders as to the future conduct of these parties ? The power to deprive them of rights which the law had given them, the power to punish them for resorting to those remedies which the law has provided for all good citizens ? He could not derive this power from the agreement of the parties, because this agreement was simply, that the court should act in the place of the jury in finding the facts in the case, and gave the court no additional powers as a court. After that agreement, the presiding judge, had just the powers he had before as presiding judge, and in addition, the power and authority to find the facts in the case, upon legal testimony, and that was all.
A jury may mistake their province, and undertake to find something, that was not in issue, but such part or parís of their verdict would be rejected as surplusage, and only such part as was confined to the issue raised by the pleadings, could stand as a verdict. Tucker v. Cochran, 47 N. H. 54. So far, then, as he acted as a jury, the presiding judge, had no authority or power to undertake to regulate the future conduct of these parties, and so far the verdict can have no force or effect. While acting as judge, he had the power to limit costs, in his discretion, and to order judgment upon the verdict he had rendered, still he had no more power than he would have had if the jury had found the verdict upon the evidence. In such case, he would have the power to set aside the verdict, if a proper case was made, or to order judgment upon it, or to continue the cause, but he had no power or jurisdiction to put the parties under bonds for good behavior, without the proper complaint on oath, nor had he the pow-er to say that they should not avail themselves of all their legal [526]*526rights and remedies, after the judgment which he might properly render, was entered up. '
As a part of the verdict, upon the facts, this portion would be merely surplusage, and would all be rejected, and as an order of the eoui't, or a part of the judgment, it was extra-judicial, was without authority, and without legal effect, a mere nullity, not voidable merely but absolutely void.
There is no doubt, therefore, that the second judgment would be reversed, if the question were brought before the court at the proper time and in the proper way. But the question here is, whether a writ of error is the proper way to bring the matter before the court at this time. When this case was brought forward, and the new judgment was rendered, it W’as at a regular term of the court, when counsel were present, as it was their duty to be, and had every opportunity to take exceptions. All the objections existed then that exist now, and if the proper exceptions had been taken to the rulings and orders of the court at that time, the judgment must inevitably have been reversed. No reason or excuse is given or offered, or pretended to exist, why objection ivas not then made, and exception, taken, to the bringing forward of the action, and. the rendering of that second judgment.
Under these circumstances, the plaintiffs in error, having had ample opportunity to take any and all exceptions, seasonably, and have them considered just the same as upon a writ of error, and having neglected to take any such exceptions at the proper time, they cannot now, upon the authority of Peebles v. Rand, supra, be heard to raise exceptions, which they had ample opportunity to take, but did not at the proper time. And which must now, for that reason,, he considered and held to be waived.
We find no ground, therefore, upon which this writ of error can bo sustained, and are of opinion that the motion to quash the writ should be granted..
Writ quashed.