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By Rule No. 13 of the Superior Court, it is provided that “The party who moves for a re-hearing or review of a cause or matter decided by a referee or referees, shall procure and furnish to the court a special report of the referee or referees, setting forth distinctly the facts found on the reference, and his or their decision upon the points of law arising in the cause." In that court, therefore, this course is imperative, wherever a review is desired, and that, in all cases, whatever the nature of the reference, except in so far as these directions may be considered as set aside by the combined operation of sections 268, 272, and 348 of the measure as now amended, under which a review of the facts is now to be obtained by appeal, in all cases where judgment has been entered upon the report. In the other courts, it would, in most instances, be highly advisable to pursue the same course, on the review of interlocutory reports, as one tending to save the time of the court and of the parties. On applying for such a special report, the attention of the referees should, of course, be directed to the precise points in controversy, in order that they may make their report full and explicit, and sufficient for the due information of the court, on those particular questions. In most cases, the observance of this precaution will narrow and simplify the discussion on the hearing of the application, and render unnecessary the intro. duction of any extraneous matter.
If the order to review be granted, and, as usual in such cases, the matter be referred back to the same referee to review his report, the proceedings before him, in relation to such review, will, of course, be conducted precisely on the same footing as those on the original reference, and his further report must be obtained and acted upon precisely in the same manner.
The review of a report upon the whole issue, on a case made under rule 24, being in the nature of a motion for a new trial on the facts, will be considered under that head, in the succeeding chapter.
PROCEEDINGS BY THE LOSING PARTY BETWEEN TRIAL AND JUDG
Ir dissatisfied with the verdict of the jury, or the decision of the court or referees, it is always open to the losing party to apply for a review of that decision. If such review be sought on alleged error in point of law, an appeal upon exceptions is the more ordinary form of obtaining it; if, on the contrary, the decision of the issue of fact be complained of, the making of a case is the usual course. Under the amendment of 1851, the former practice of moving for a new trial upon the judge's minutes, abolished by the previous measures, is restored. These different forms of proceeding will, accordingly, be considered, seriatim, in inverse order. The review of a referee's report on the whole issue, being obtainable on a case made, will be considered in connection with that branch of the subject.
In the Codes of 1848 and 1849, the subject of new trial in jury cases was left totally unprovided for, the only notice of that subject being under the head of trial by the court. This omission gave rise to much discussion, and to many doubtful, and, in some cases, conflicting decisions, with regard to the power and mode of reviewing an erroneous verdict on a question of fact. The omission is, however, now attempted to be remedied by the amendments in secs. 264 and 265.
In the measure of 1851, these amendments were made at considerable length. On the last revision, the clauses so inserted have been completely remodelled, and now stand as follows:
§ 264. Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or further consideration. If a different direction be not given by the court, the clerk must enter judgment in conformity with the verdict. If an exception be taken, it may be reduced to writing at the
time, or entered in the judges minutes, and afterwards settled as provided by the rules of the court, and then stated in writing in a case, or separately, with so much of the evidence as may be material to the questions to be raised, but need not be sealed or signed, nor need a bill of exceptions be made. If the exceptions be, in the first instance stated in a case, and it be afterwards necessary to separate them, the separation may be made under the direction of the court, or a judge thereof. The judge who tries the cause, may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motions in actions hereafter tried, if heard upon the minutes, can only be heard at the same term or circuit at which the trial is had. When such motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had.
§ 265. A motion for a new trial, on a case of exceptions, or other. wise, and application for judgment on a special verdict, or case reserved for argument or further consideration, must, in the first instance, be heard and decided at the circuit or special term, except that when exceptions are taken, the judge trying the cause may, at the trial, direct them to be heard in the first instance at the general term, and the judgment in the meantime suspended; and in that case, they must be there heard in the first instance, and judgment there given. And where, upon a trial, the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at a general term ; and in that case, the application for judgment must be made at the general term.
A small portion of these sections refers to the reservation of cases for argument or further consideration, or to a verdict taken subject to the opinion of the court, proceedings in which the plaintiff is the moving party, and which will accordingly be considered in the next chapter.
It will be observed that, by the last amendment, the ancient nomenclature and distinctive form of the bill of exceptions are abolished, and a statement in writing, differing but little from a case for a review on the facts, in the usual form, is substituted in its stead.
Whatever the course of proceeding adopted by him, the first measure advisable on behalf of a party dissatisfied with the decision pronounced, will be to obtain a general stay of his adversary's proceedings. In the recent case of Ball v.The Syracuse and Utica
Railroad Company, 6 How. 198, 1 C. R. (N. S.) 410, it was even held that a new trial could not be granted at all, under the Code of 1849, unless the case were reserved for argument, or unless such an order were obtained, within the four days, after which, under that measure, the order would otherwise become final. Though the restriction of 1849, under which the judgment became final after the above period, unless the contrary was provided for, no longer exists; the application should, in all cases, be made at once, and, if possible, to the judge who tried the cause, either at the trial, for a special direction to that effect, (which seems to be contemplated by the last amendment) or, at all events, as soon after as possible. In this case, no additional evidence whatever will be necessary. The motion may, on the contrary, be made ex parte, grounded on the judge's personal knowledge of the facts which have been so recently before him. Unless the proceeding be palpably frivolous or dilatory, the granting of a stay of this nature is almost as of course. The power of the judge, in this respect, was clearly asserted in the case of Livingston v. Miller, 1 C. R. 117,
Prior to the recent amendments, the stay usually applied for was until the case or bill of exceptions should have been settled and filed; and, with regard to the latter proceeding, such will still be the proper course, as on the exceptions, where separately taken, being settled, judgment is signed by the adverse party, and the application then assumes the shape of an appeal. Where the motion is on a case, the stay applied for should be, not merely until after the settlement of the case, but also until some reasonable time after the hearing and final decision of the motion founded thereon. This will save the necessity of a second application for the latter purpose. Such also is the proper form of stay, where the application for a new trial is intended to be made at once upon the judge's minutes. Forms of the order to be applied for in these cases, will be found in the appendix.
The advantage of applying to the judge who tried the cause is obvious. In the superior court it is made imperative, by No. 8 of the New Rules ; and it is also prescribed that such stay must be obtained and served, within four days after the entry of judgment by the clerk, or before the insertion of the costs by that officer in the judgment roll. In the other tribunals, however, it is competent for another judge to entertain such application. In this case, though equally made ex parte and without notice, it must be grounded on evidence, sufficient to satisfy the judge applied to as to what actually took place at the trial, and likewise that the application is one proper to be granted. Where the review of the decision of referees is applied for, this is of course the only mode of proceeding as the referees, when once their report is made, are “functi officio," and have no further power, either to grant a stay or otherwise. The application, under these circumstances, will best be founded on the report itself, and the stay asked for, should be the same as that upon a case for review of a verdict, "mutalis mutandis."
The stay in question should be applied for as early as possible in all cases, with a view to preclude the plaintiff from serving notice of his judgment, and thereby limiting the time for appealing to the general term. See also rule 8 of the superior court above cited. Once obtained, such stay has the effect of stopping this as well as all other proceedings, thus practically enlarging the time in question.— V. Bagley v. Smith, 2 Sandf. S. C. R. 651. An order to stay must be applied for as such, in terms, as the mere taking of exceptions, or making a case, has no effect whatever as a stay of interim proceedings, for the purpose of entering or enforcing the judgment, or otherwise.-Oakley v. Aspinwall, 1 Sandf. S. C. R. 694.
When obtained, the order in question should be forthwith served upon the opposite party, when, and not till when, the stay is complete. It is of course competent for the latter to move to vacate the order, if unduly obtained. If it be clearly shown, either that the stay has been obtained in manifest bad faith, or that the subject matier of the action will be imperilled by delay, the application might be successful, but, unless a very strong case be made out, it would probably be useless.
The rule of the superior court, above cited, provides for this contingency as follows :-“ The court, by order, may permit the judgment to be entered and collected, without prejudice to a motion to set aside the verdict, and may impose such terms on each party in respect thereof as to the court may seem meet."
The next subject to be considered, is the motion for a new trial upon the judges minutes, a proceeding solely and exclusively applicable to cases where the trial has been by jury, and