Sparrow v. Strong,
71 U.S. 584 (1866)

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U.S. Supreme Court

Sparrow v. Strong, 71 U.S. 4 Wall. 584 584 (1866)

Sparrow v. Strong

71 U.S. (4 Wall.) 584


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 judgment below.

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 defendants.

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, and, after argument, overruled the motion and refused the new trial, 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 new trial.

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 of the district court, made on the 13th of November, overruling 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 agreement

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 of the 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 seen 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, considered, and adjudged by the Court here that the judgment and decree 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 with costs."

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 errors 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, some of 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 citation. 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; that it was refused on the 13th of November, 1862; that an appeal from that order 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 the affirmance.

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 ejectment."

"If this view be correct, the judgment of the Supreme Court is one to review which a writ of error may be prosecuted."

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

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