Gibson v. Waterhouse

5 Me. 19

Opinion

. Meneen C. J.

delivered the opinion of the Court.

At May term, 1826, the motion in arrest of judgment, which had been duly filed at the term preceding, was argued; at that time there was an attempt made to amend the verdict, by the notes of the Judge who presided at the trial ; but as no satisfactory certificate could be obtained from him to authorize such an amendment, the judgment was arrested. Before the adjournment of the court, a motion was made, on the part of the defendant, for costs, which was opposed; and a motion was made, on the part of the plaintiff for a venire facias de novo, which was also opposed by the defendant. Both these motions have been argued; and it remains for the court to dispose of them.

We will first consider the- application for a venire facias de novo. — ■ There is no question as to the power of this court to grant it, in those cases where a judgment, rendered in favor of a defendant, has been reversed on-error — Harwood v. Goodright, Cowp. 87. 89. Grant v. Astle, Doug. 722. Bent v. Baker, 3. D. & E. 27. Brown v. Clark, 3. Johns. 443. Keyes v. Stone, 5. Mass. 391. Wilson v. Mower, ib. 407. In Massachusetts, and in several cases decided by this court on error, the award of a venire facias de novo is carried into effect in the simple mode of ordering a new trial at the bar of the Supreme Judicial Court, which is had accordingly in the usual form. This seems to be the course, also, in the Circuit Court of- the United States. The United States v. Sawyer. 1. Gal. 86. In all these cases, by the reversal of the judgment, the defect or fault, which occasioned the reversal, is removed out of the plaintiff’s way; and on a second trial he may proceed as though no verdict had ever been given; and, on motion, may in many cases,, by an amendment, be able to avoid further danger. We apprehend also, that the same consequences will follow, or rather that a plaintiff may obtain the same advantages, pending a motion in arrest of judgment, by a motion for a venire de novo; or, according to our practice, by a motion to set aside his own verdict, on account of the defect complained of by the defendant; and then proceeding to another trial, on an amended declaration, where his case will admit of it. In Hopkins v. Beedle, 1. Caines, 347, a motion in arrest of judgment was made. Kent J. in delivering the opinion of the court, says, “ With respect to the third count we are of opinion that it is insufficient to sustain an action; but as the verdict is general, the judgment must be arrested: the plaintiff, however, on application, might have been entitled to a venire facias’de novo, on payment of costs.” So also in Lyle v. Clason, 1. Caines, 581, a similar motion was filed; and Kent J. in delivering the opinion of the court, after commenting on the insufficiency of one of the counts, says “ the judgment must be arrested, unless the plaintiff wishes for a writ of inquiry de novo, which he is entitled to, on payment of costs.” In this last case, the defendant had been defaulted. By this course of proceeding, a defendant enjoys all the advantages which he could obtain by a reversal of the plaintiff’s judgment on a writ of error, and at less expense; and a plaintiff is also placed in the same situation in which he would stand, after the reversal of his judgment»

From the view we have thus taken of the subject, it is evident, the plaintiff’s motion comes too late. He did not elect in season to abandon his verdict and move for a new trial, but trusted to the failure of the defendant’s motion' in arrest of judgment. As that was sustained and the judgment arrested, the suit was then completely terminated, and could no longer be the subject of revision in any form.

With respect to the question of costs, we are sensible that the different courts have given different opinions. We incline,, however, to decide in conformity to several decisions in Massachusetts, allowing costs in such cases to the defendant; considering him as entitled to them by the statute of that State, which gives costs to the prevailing party. That statute has been re-enacted in this State, long since the above construction of it was given; and by such reenactment, the construction seems also to have been adopted. In the case of Little v. Thompson, 2. Greenl. 228, we allowed costs to the defendant, after arresting the judgment. No injustice is done to the plaintiff, as the fault was his own, which rendered the arrest of judgment necessary.

Plaintiff’s motion overruled. Costs allowed to defendant.