1. After the adjournment without day of a term, whereat a final
judgment on a verdict was rendered by one justice of the Supreme
Court of the District of Columbia and an appeal taken therefrom to
the general term, but no bill of exceptions or case stated filed, a
new trial cannot be granted upon a case stated filed by him at a
subsequent term.
2. When a verdict and a judgment for the plaintiff were wrongly
set aside, and the error appears of record, he may, without a bill
of exceptions, avail himself of it upon a writ of error to reverse
a final judgment afterwards rendered against him.
3. When a judgment for the plaintiff in a personal action was
erroneously set aside and a subsequent final judgment against him
is brought up by writ of error, pending which he dies, this Court
will affirm the first judgment
nunc pro tunc.
The case is stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
This is an action to recover damages for a personal injury
sustained by reason of a defect in a highway. The Supreme
Page 106 U. S. 8
Court of the District of Columbia originally held that the
action could not be maintained against the defendant and gave
judgment in its favor. But this Court, on writ of error, reversed
that judgment and ordered a new trial.
Dant v. District of
Columbia, 91 U.S. 557. Upon the present record, that decision
of this Court must, as was assumed by both counsel at the argument,
be considered as settling the law of the case on the question then
decided.
This record shows the following proceedings:
At October term, 1876, of the Supreme Court of the District of
Columbia, held by one justice, a new trial was had pursuant to the
mandate of this Court. On the 18th of November, a verdict was
returned for the plaintiff in the sum of $5,000 and judgment
rendered thereon, and the defendant moved the judge for a new trial
because the verdict was contrary to law and the instructions of the
court and to the evidence in the case and because the damages were
excessive. On the 26th of December, that motion was overruled. On
the 5th of January, 1877, the defendant filed this appeal:
"And now comes the defendant by its attorney and appeals from
the judgment rendered against it at this term to the general term
of said court, having first filed in said cause a statement of the
case,"
and on the same day October term, 1876, was adjourned without
day.
No statement of the case was filed until the next term, at
which, on the 9th of March, 1877, a transcript of the pleadings and
of the instructions to the jury, and an abstract of all the
testimony given in the cause, were filed with a certificate, under
the hand and seal of the judge who presided at the trial, to their
correctness, and
"that, for the purpose of making a case stated on appeal by the
defendant from the verdict of the jury and the order of the justice
refusing a new trial, I sign and seal this paper, and order it to
be filed as of the day of appeal, January 5, 1877, the defendant
not having been guilty of laches in the case; that to my signing
and sealing this paper the plaintiff objects, which objection is
overruled by me, and to the overruling of which objection the
plaintiff excepts."
At September term, 1877, there was a "motion for new trial on
case stated, filed in general term, October 3, 1877," and on the
8th of December, 1877, the court in general term
Page 106 U. S. 9
reversed the judgment below and remanded the case to be tried
anew. At the third trial, the jury returned a verdict for the
defendant under an instruction that the plaintiff could not recover
because the evidence showed contributory negligence on his part. To
this instruction he tendered a bill of exceptions, which was
allowed and made part of the record, and, after judgment on this
verdict for the defendant, was entered at a general term of the
court, which, on the 11th of November, 1878, affirmed the judgment,
and on the next day the plaintiff sued out this writ or error.
Since the entry of the case in this Court, the plaintiff has
died, and the action is prosecuted by his administrator.
The Revised Statutes of the United States relating to the
District of Columbia contain the following provisions: an exception
taken at the trial of a cause may be reduced to writing at the
time, or
"may be entered on the minutes of the justice, and afterwards
settled in such manner as may be provided by the rules of the
court, and then stated in writing in a case or bill of exceptions,
with so much of the evidence as may be material to the questions to
be raised."
Sec. 803. The justice who tries the cause may, in his
discretion, entertain a motion, entered 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 motion
shall be made at the same term at which the trial was had." Sec.
804.
"When such motion is made and heard upon the minutes, an appeal
to the general term may be taken from the decision, in which case a
bill of exceptions or case shall be settled in the usual
manner."
Sec. 805.
"A motion for a new trial on a case or bill of exceptions, and
an application for judgment on a special verdict or a verdict taken
subject to the opinion of the court, shall be heard in the first
instance at a general term."
Sec. 806.
By the rules of the Supreme Court of the District of Columbia,
which are made part of the record, every motion for a new trial
must be in writing, and state the grounds upon which it is based,
and be made within four days after verdict, and be entered on the
minutes of the court on the day on which it is presented. Rule
61.
"The bill of exceptions must be settled
Page 106 U. S. 10
before the close of the term, which may be prolonged by
adjournment in order to prepare it."
Rule 65. And
"In every case, the fact of the settling and filing of the bill
of exceptions, and that it is made part of the record, shall be
noted on the minutes of the court."
Rule 68.
By the statutes above quoted, although a motion for a new trial
on a case or bill of exceptions may "be heard, in the first
instance at a general term," any exception stated in the case or
bill must either have been reduced to writing at the trial or have
been then entered on the minutes of the justice, and "afterwards
settled in such manner as may be provided by the rules of the
court," and those rules require it to be "settled before the close
of the term."
The record in this case shows that October term, 1876, was
adjourned without day on the 5th of January, 1877, and does not
show, otherwise than by the certificate afterwards filed by the
judge, what were his rulings in matter of law, or that any
exception to such rulings was taken by the defendant. The only
motion for a new trial made within four days after verdict, as
required by the sixty-first rule, was the motion filed at that
term. Even if the court in general term could dispense with its
rules so far as to entertain an original motion for a new trial
after the time therein prescribed, and if the "motion for a new
trial upon case stated filed in general term October 3, 1877," can
be deemed a distinct motion filed for the first time in the general
term, the difficulty remains that the only case stated which
appears of record is the case stated by the judge two months after
the final adjournment of the term at which he had overruled the
motion made before him for a new trial on the ground, among others,
that the verdict for the plaintiff was contrary to law, and had
rendered judgment on that verdict, and an appeal from his judgment
had been taken to the general term. At that stage of the case, the
judge could not, without contravening the express provisions of the
statutes and the decisions of this Court, present for consideration
in an appellate court questions of law which had not been made part
of the record at the term at which his judgment was rendered.
Generes v.
Bonnemer, 7 Wall. 564. The judgment setting aside
the verdict for the plaintiff and ordering a new trial was
Page 106 U. S. 11
therefore erroneous, whether it is to be treated as proceeding
upon a distinct motion filed at the general term or upon an appeal
from the decision of the judge on the original motion filed before
him.
As the error appears on the record, no bill of exceptions was
necessary to secure the rights of the party aggrieved.
Bennett v.
Butterworth, 11 How. 669. As the erroneous order
directed further proceedings in the court below, he could not bring
the case to this Court until after such proceedings had been had
and a final judgment rendered against him.
Baker v. White,
92 U. S. 176;
Bostwick v. Brinkerhoff, ante, p.
106 U. S. 3. As
without that error the final judgment could not have gone against
him, the question is open on his writ of error upon the final
judgment.
The judgment rendered upon the verdict in favor of the plaintiff
having been erroneously set aside, the subsequent final judgment
for the defendant must be reversed and the former judgment for the
plaintiff affirmed as of the date when it was rendered in order to
prevent the action from being abated by the subsequent death of the
plaintiff.
Mitchell v. Overman, 103 U. S.
62.
Ordered accordingly.
MR. JUSTICE FIELD, was not present at the argument and took no
part in the decision of this case.