1. This Court will not take jurisdiction of a judgment shown by
the context of the record to be but an order affirming a refusal of
a court below to grant a new trial, even though the language of the
record of affirmance brought here by the writ of error purports to
affirm generally the judgment of a court inferior to the affirming
court and the only judgment, in strict language, in the record of
such interior court, is a general judgment.
2. An appeal from an order denying a motion for a new trial does
not, under the legislation of Nevada, carry the original judgment
and the whole cause before the appellate court so that the decision
upon the appeal operates as a judgment reversing or affirming the
Sparrow brought ejectment against Strong in the District Court
for the County of Story in Nevada for an undivided interest in a
mining claim, the proceeding being in the form prevailing in Nevada
of petition, answer, and replication.
On the 21st of May, 1862, a jury, after hearing the evidence and
the charge of the court, rendered a general verdict for the
On the next day afterwards, to-wit, on the 22d day of May, 1862,
the court pronounced judgment on the verdict.
On the 13th of November, 1862, the district court in which the
cause had been tried heard a motion for new trial,
after argument, overruled the motion and refused the new
to which the plaintiffs excepted.
Two days afterwards, the plaintiffs gave notice to the
defendants that they (the plaintiffs) appealed to the supreme court
of the territory from the order
of the district court,
made on the 13th of November, 1862, overruling the motion for a
On the same day of this notice, the defendants filed a bond --
an undertaking -- for the damages and costs. In this bond they
recite that it is given on an appeal from the order
district court, made on the 13th of November,
the motion for a new trial.
On the 22d of November, 1862, the counsel of both parties agreed
upon a statement,
and it was declared in their
Page 71 U. S. 585
that the statement so settled was to be used on the hearing in
the Supreme Court of the appeal from the order
district court refusing a new trial,
which order is
referred to in it as made on the 13th of November, 1862.
The statement comprised:
1. The motion of the plaintiffs for a new trial, and a
specification of the grounds on which it was to be sustained, among
which are insufficiency of the defendants' evidence, surprise at
the trial, and newly discovered evidence.
2. Certain evidence, oral and documentary, given on the trial.
There were no bills of exception
to evidence embodied in
the statement, but in the specification of grounds it was alleged
that the evidence was excepted to.
3. The prayers of both parties for instructions to the jury on
questions of law, with the answers of the judge.
4. The general charge to the jury.
5. Affidavits of the parties and of several other persons taken
after trial to prove surprise and newly discovered evidence. One of
these undertook to detail what a certain witness, who had been
rejected, would have sworn if he had been admitted.
On this statement apparently, the case went into the supreme
court of the territory. No writ of error was taken out, nor did
bills of exception accompany the evidence, nor was any assignment
of error made in the territorial supreme court.
On the 16th of March, 1863, the supreme court gave judgment in
the case as follows:
"On appeal from the District Court of the First Judicial
District in and for Story County."
"Now, on this day, that cause being called, and having been
argued and submitted and taken under advisement by the court, and
all and singular the law and the premises being by the court here
and fully considered,
the opinion of the
court herein is delivered by Turner, C.J. (Mott, J., concurring),
to the effect that the judgment below be affirmed."
"Wherefore it is now ordered,
by the Court here that the judgment
of the District Court of
Page 71 U. S. 586
the First Judicial District in and for Story County, be and
the same is affirmed
From this judgment of the Supreme Court of Nevada a writ of
error, on the 14th of August, 1863, was taken here.
On the same day, the plaintiff in error filed with the clerk of
the supreme court of the territory the assignment of
for this Court -- that is to say a specification of the
grounds on which they relied here for the reversal of the decision
of the territorial supreme court.
In those specifications they complained that the supreme court
of the territory refused to reverse the judgment and order of
the district court refusing a new trial.
Then followed the
specific objections to the judgment and order,
which were matters of fact.
On the same day that the writ of error from this Court was taken
out and the errors assigned the plaintiffs petitioned for a
In that citation they described the cause or
subject matter which it was their object to have reviewed in this
Court. They set forth that after trial and judgment in the district
court, they moved the same court for a new trial;
was refused on the 13th of November, 1862; that an appeal from
was taken to the supreme court of the territory;
that in the latter court, on the 16th of March, 1863, judgment was
rendered "affirming the order of said district court;"
that the plaintiffs afterwards asked for a rehearing, which was
denied them; hence the writ of error.
This Court, two terms ago, on the record being brought before
them by a motion to dismiss the case on other grounds assigned,
doubted, on looking at the judgment of affirmance above quoted, as
given in the Supreme Court of Nevada, whether it was a final
judgment or decision reviewable here within the meaning of the act
of Congress organizing the territory, and which gave this Court
jurisdiction to review "the final decisions" of the supreme court
of the territory, and ordered that point to be argued. It was
accordingly argued, the argument turning chiefly on the language of
Page 71 U. S. 587
After the argument, this Court refused to dismiss the case on
the motion. It then said: *
"It is insisted on this point that the judgment is merely an
affirmance of the order of the district court overruling the motion
for new trial. If
this be so, the judgment itself is, in
substance and effect, nothing more, and it is settled that this
Court will not review such an order. The granting or refusing of
new trials is a matter of discretion, with the exercise of which,
by the court below, this Court will not interfere. The circumstance
that the discretion was exercised under a peculiar statute by an
appellate court, and on appeal, cannot withdraw the case from the
operation of the principles which control this Court."
"But the majority of the Court does not feel at liberty to
disregard the plain import of the terms of the judgment rendered by
the supreme court of the territory. It does not purport to be an
order or judgment affirming an order overruling a motion for new
trial, but a judgment affirming the judgment or decree of the
district court, and the only judgment or decree, which we find in
the record, is the judgment for the defendants in the action of
this view be correct, the judgment of the Supreme
Court is one to review which a writ of error may be
The case was accordingly retained for a hearing in regular
course. It was now reached, and was argued fully on its merits, the
true nature of this judgment or decree of affirmance and of every
part of the matter of the jurisdiction being, however, again very
fully discussed on a minute examination of all parts of the record,
with a presentation of the Code of Nevada.
Page 71 U. S. 594
THE CHIEF JUSTICE delivered the opinion of the Court.
This case was before us at the last term, upon motion to dismiss
the writ of error.
The suit, originally brought in the District Court for the
Territory of Nevada, was an action of ejectment for an undivided
interest in a mining claim.
Upon trial, there was a verdict and judgment for the plaintiff.
Subsequently, and in accordance with the statute of Nevada, a
motion for a new trial was made, which was denied. An appeal was
then taken to the supreme court of the territory, which gave
judgment affirming the judgment or decree of the district
We were asked to dismiss the writ upon the ground that this
judgment affirmed only the order of the district court denying the
motion for new trial, and was therefore not reviewable here.
Page 71 U. S. 595
On opening the record, however, it was apparent that the
judgment of the appellate court was, in terms, an affirmance of the
judgment or decree of the district court, and that the only
judgment of that court, properly so called, was the judgment for
the defendants in the action of ejectment.
A majority of the court declined to look beyond the plain import
of the judgment of affirmance and examine the record farther in
order to ascertain whether there was anything in it which would
limit its effect to an affirmance of the order denying the motion
for a new trial.
The motion to dismiss was therefore overruled, but we then
observed that if the judgment of the supreme court was in substance
and effect nothing more than such an affirmance, this Court could
not review it, and after stating the familiar rule that this Court
will not revise the exercise of discretion by an inferior court in
granting or refusing new trials, we said further:
"The circumstance that the discretion was exercised under a
peculiar statute by an appellate court and upon appeal cannot
withdraw the case from the operation of the principles which
control this Court."
The cause has now been regularly heard and fully argued, and the
first question for our consideration is that which was left
undecided at the last term: "What is the true nature and effect of
the judgment of the territorial supreme court?"
The record shows an action of ejectment by petition, answer, and
replication -- the form sanctioned by territorial law -- regularly
prosecuted in a territorial district court, resulting in a verdict
and judgment for the defendants.
The record shows also a motion for new trial overruled and a
notice by the plaintiffs to the defendants of an appeal from the
order overruling that motion to the supreme court of the territory,
and a bond of the plaintiffs on appeal reciting the appeal as made
from that order.
Under the laws of Nevada, appeals are allowed from orders
granting or refusing new trials, but it was necessary, before an
appeal could be perfected, that a statement of the case showing the
grounds of appeal should be filed. A
Page 71 U. S. 596
statement which had been used on the motion for new trial was
accordingly filed under a stipulation signed by both parties which
recited the notice of appeal as an appeal from the overruling
There is no paper in the record which indicates that either
party understood that anything was before the appellate court
except that order. Nothing else, as it seems, was intended to be
brought before it by the appellants, and nothing else was
understood to be by the appellees.
If, then, the decision of that court is anything more than an
affirmance of the order of the district court, it is not what was
expected by either party. It must not, therefore, be held to be
more unless the principles of legal construction clearly require
Its terms, indeed, import an affirmance of the original
judgment; but are they incompatible with a more limited sense? The
decision is loosely and inaccurately expressed. It purports to
affirm a judgment and decree, but there was no decree, in any
proper sense of the word, in the district court. The words
"judgment and decree" must therefore have been used as equivalents,
and "judgment" in such a connection may well have been regarded as
the equivalent of "decision or order."
It is probable, we think, that the court intended that its
judgment should be understood as a simple affirmance of the order
below. And such seems to have been the understanding of the
appellants, for in their prayer for a citation on appeal to this
Court, they describe their "appeal" to the supreme court of the
territory as "taken for the reversal of the order" in the district
court, and state that judgment was given "affirming the order." We
impose, then, no impossible or even unnatural sense on the terms of
the judgment, especially when considered in connection with the
whole record, when we hold it, as we do, to be nothing else than an
affirmance of the order overruling the motion for new trial.
But it was argued at bar with ingenious ability that this
judgment, if admitted to be merely an affirmance of the
Page 71 U. S. 597
order of the district court, was nevertheless a final judgment,
subject to review on a writ of error by this Court. It was insisted
that under the peculiar legislation of Nevada, an appeal from an
order denying a motion for a new trial carried the original
judgment and the whole cause before the appellate court, and that
the decision upon appeal operated as a judgment reversing or
affirming the judgment below.
But we do not so understand that legislation. The statutes of
Nevada directed the judgment to be entered within twenty-four hours
after verdict unless there was a stay of proceeding, and the
direction of the statutes was observed in this case. But those
statutes also provided for a motion for new trial after judgment,
and the effect of granting the motion was to vacate the judgment
and verdict, as in the ordinary practice it would vacate the
verdict only, and so prevent the entry of judgment. With this
exception, the proceeding on motion for new trial in the court of
original jurisdiction was not distinguishable in any important
respect from the like proceeding in the district and circuit courts
of the United States. There was, however, another peculiarity in
respect to the finality of the proceeding. In the latter courts,
the decision upon such a motion is without appeal. In the District
Court of Nevada, an appeal might be taken to the supreme court,
and, as we have seen, in case of such appeal, a statement showing
the grounds of it must be filed in order to perfect the
But there is nothing in the statutes which gives, in terms, any
other or different effect to the reversing or affirming order of
the appellate court than would attend the allowance or denial of
the motion in the inferior court. Nor is there anything in the
statutes which seems intended to give by implication any such other
or different effect. On the contrary, the statutes provide for the
ordinary mode of reversing the judgments of inferior courts by
appellate tribunals upon writs of error, which would hardly have
been done if it was intended to give the same effect to appeals
from decisions upon motions for new trials.
Page 71 U. S. 598
Decisions on such motions by the district courts were required
to be made upon such grounds of law and facts as the case might
furnish, and upon like grounds were the decisions of the supreme
court upon appeal required to be made. We cannot doubt that the
decision of the district court in such a case was the exercise of a
discretion not reviewable in the territorial supreme court, except
under an express statute of the territory. And we are obliged to
think that the decision of the appellate court was equally an
exercise of discretion upon the law and the facts, and not
reviewable here in the absence of any act of Congress authorizing
appeals in such cases.
This view of the preliminary question makes it unnecessary to
examine the other important points in the case, which have been so
ably and exhaustively discussed by counsel. We think the judgment
of the supreme territorial court only an order affirming the order
of the district court denying a motion for new trial, and that it
is therefore not reviewable here on error.
* Sparrow v.
3 Wall. 105.