Seymour D. (Seymour Dwight) Thompson.

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as of right is allowable, but which proceeds to judgment upon
a substantive cause of action in which a new trial as of right
is not allowable, a motion for a new trial, as of rights is
improperly made.^ Likewise, where two causes of action are
improperly joined, where a new trial as of right is permitted in
one, but not in the other .^ Under certain circumstances, the
motion may be directed to part of the case only. Thus, the
rights of parties upon a promissory note may be adjusted as
between themselves, in an action against them by the holder of
the note and the motion made upon that issue. ^ So, in a petition
embracing several counts, it may be made as to one count
thereof, where it can be done without danger or confusion, but
usually this will not be allowed.^ And in an action for divorce,
where the issue involves title to real estate, in which the judg-
ment adjudges title in one of the parties, the other party is en-
titled to move for a new trial upon this issue, but not upon the
divorce issue.®

§ 2747. Preliminary Steps. — In England the first step to-
wards a new trial is in the form of a motion to show cause why a
new trial should not be granted.^ In this country the mode of

1 Johnson v. McCuIloch, 89Iud. 270, e Schmitt v. Schmitt, 82 Miun. 130;
to whole case; Morris v. State, 1 Lake z;. Bender, 18 Nev. 361.
Blackf. (Ind.) 37; Mills v. State, 52 ' Vernon v. Haukey, 2 T. R. 113;
Ind. 187; Veatch v. State, 60 Ind. 291; liilliard on New Trials (2d ed.), § 16.
Ex parte Bradley, 48 Ind. 548 ; Richter It is stated by Blackstoue that, prior to
V. Koster, 45 Ind. 440. But see Hous- 1655, a practice took rise in the Coin-
ton u.Bruner, 39 Ind. 376. mon Pleas of England, of granting

- Bradford v. School Town of Mar- new trials upon the more certificate of

ion, 107 Ind. 280. the judge, unfortified by any report of

* Butler University v. Conrad, 94 the evidence that the verdict had
Ind. 353. passed against his opinion; though

* Houston V. Bruner, 39 Ind. Chief Justice Rolle refused to adopt
376. that practice in the Court of King's

5 Woodward v. Horst, 10 Iowa, 120; Bench. But very early in the reign of
Bond V. Wabash &c. R. Co., 67 Iowa, Cliarles II., new trials were granted
712. upon affldavit. 3 Bl. Com. 388; Hil-

Tit. IX, Ch. LXXX.] jianner of making motion. 2083

presenting the motion is regulated by the statutes of the various
States of the Union. Many particuhirly specify the method;
others state it generally; while others, as has already been seen,
leave it to be determined by the rules of the common law. By
a majority of the practice acts, the first step is the presentation
of the motion to the trial court. A few States require the costs
of the trial to be paid as a condition to make the motion; ^ but,
this is not the rule in ordinary causes, yet in real actions,
where a new trial is granted as a matter of right, the statutes
usually so provide. Analogous to the English practice, in Con-
necticut the court is required to grant a rule to show cause, etc.^
Likewise, in Georgia, a rule nisi, to show cause — why a new
trial should not be granted, is the preliminary step,^ but such
rule may be moved for without previous notice.* In Wisconsin
a sufficient affidavit of merit must accompany the application.^
A motion for leave to make a motion for a new trial is one un-
known to the law and a nullity.^

§ 2748. Notice of the Motion. — Ordinarily, the statutes do
not require notice of the motion to be given to the adverse party,
and it is generally held that this is not a necessary, or even
proper, preliminary step,^ unless the motion is made after the
term at which the trial was had, when notice is required as well
as in ordinary actions.^ Filing the motion is regarded as suf-
ficient notice. By the practice of many courts, it must be duly
entered upon the motion docket, which entry operates as con-
structive notice.^ In Wisconsin, the motion, with the papers
upon which it is founded, must be served upon the opposite party .^'*

Hard on New Trials, § 2 (2cl ed.) ; 2 ^ Mowryw. Hill, 11 Wis. 146.

Graham & Waterman on N. T., pp. 38, ^ Odell v. Sargent, 3 Kan, 80.

39; 3 Stephen's Com. 625. ' Werner v. Edmiston, 24 Kan. 147.

1 Dawson v. Shillock, 29 Minn. 189; » gge § 2764.

Pugh V. Eeat, 107 111. 440. ^ Filed in court and entered upon

2 Gen. Stat. Conn., ch. XV., Prac. the motion docket is notice. Ariz. Rev.
Act, tit. 19, §§ 5, 6. Stat. 1887, par. 923.

3 Spence v. Holman, 30 Ga. 646. i" McWilliaras v. Bannister, 42 Wis.

4 Gauldin v. Crawford, 30 Ga. 674; 301, 305.
Powell V. Howell, 21 Ga. 214, 216.

2084 MOTIONS FOR NEW TRIAL. [2 TllOUip. Tl'.,

In States where a justice of the peace is authorized to entertain
the motion, frequently there are to be found provisions necessi-
tating notice.^

§ 2749. Notice of Intention: (a.) Time of Filing and
Serving-. — In California,^ Idaho, ^ Montana^ and Nevada,® the
mover is required to file with the clerk and serve upon the ad-
verse party, within a prescribed time after notice of the decision,
a notice of intention that he will move for a new trial, desiirnat-
iug the grounds upon which the motion will be made. This mo-
tion is insufficient if given before the decision is rendered, as
there is no party " aggrieved " within the meaning of the law.^
The mover may wait for notice in writing of the decision from
the adverse party before giving notice of intention, and he is en-
titled to such notice, although he was present in court when the
decision was rendered, and waived findings, and asked for a stay
of proceedings on the judgment.^ The notice of intention must
be served within the statutory time, or the court loses its juris-
diction,^ which cannot be restored by an order allowing the

1 Ark. Dig. 1884, §§4071, 4072; ' Biagi w. Howes, 66 Cal. 4G9. Ap-
Barons v. Anderson, 37 Kan. 399; s.c. plying for time in which to file notice
15 Pac. Rep. 226; Texas Civ. Stat, and statement Is not a waiver of no-
(Sayle's ed.), art. 1624. tice of the decision required by laws

2 Cal. Code Civil Proc, § 659; Co- of Utah of 1884, § 53G. Burlock v.
veny v. Hale, 49 Cal. 552; 1 Haynes' Shape (Utah), 17 Pac. Rep. 19.

N. T., § 12. ^ Killip V. The Empire Mill Co., 2

3 Rev. Stat. Idalio 1887, § 4441; Nev. 34; State w. First Nat. Bk., 4 Nev.
Stevens v. N. W. Stage Co., 1 Idaho 358. Notice of motion tiled in clerk's
(N. s.), 604. office on eleventh day after notice of

^ Rev. Stat. Mont. 1888, § 355, pt. decision was served by mail, and the

3d. record showed that the distance be-

•' Robinson I'. Benson, 19 Nev. 331; tween the place of deposit and the

s. c. 10 Pac. Rep. 441. place of address of notice of decision

<> Cal. Code Civ. Proc, §§ 657, 659; was over seventy miles — held, under

Dominguez r. Mascotti (Cal.), 15 Pac. Cal. Code Civil Proc, § 1013, giving

Rep. 773; Mahoney v. Capcrtou, 15 an extension of time in certain cases

Cal. 313; Bates v. Gage, 49 Cal. 12G; by mail, that the notice of the motion

Hinds r. Gage, 56 Cal. 487; Spottis- was tiled in time. Sullivan v. \Va\-

wood V. Weir, 66 Cal. 529; s. c. 6 Pac. lace, 73 Cal. 307; s. c. 14 Pac. Rep.

Rep. 381; Careaga v. Feruald, 66 Cal. 789. "Rulesof court are but a means

351- to accomplish the ends of justice, and


notice to be filed nunc pro tunc.^ The court may, by order, ex-
tend the time for giving notice of intention, before the expiration
of the statutory time, but to do so afterwards is in excess of
jurisdiction and void.^ In a case tried without a jury, the decis-
ion of the court is distinct from the findings, and the time within
which notice of intention to move for a new trial must be given
begins to run from the announcement of the judgment.^

§ 2750. (Jj.) Sufficiency of. — The j)ractice acts require the
notice of intention to " designate the grounds upon which the
motion will be made," and how it will be made.* It must be in
writing in open court. Thus, a verbal notice out of court is insuffi-
cient.^ A notice of intention to vacate the judgment is not a
notice of intention to move for a new trial ; '^ but the notice need
not specify that the mover will ask that the former verdict or
decision will be vacated.^ " The order granting the newtrialdoes
of itself vacate the decision."^ A notice of intention is not
objectionable because it specifies that the motion will be made,
not only upon the minutes of the court, but also upon a bill of
exceptions and a statement of the case.^

it is always in the power of the court time for giving notice of intention to

to suspend its own rules or to except a move for new trial. Stevens v. N. W.

particular case fi-om their operation, Stage Co., 1 Idaho (x. s.)> C04.

whenever the purposes of justice re- ^ Robinson v. Benson, 19 Nev. 331 ;

quire it." Pickett v. Wallace, 54 Cal. s. c. 10 Pac. Rep. 441; Emericw. Alva-

148; Ibid. rado, 64 Cal. 529.

i Killip V. The Empire Mill Co., 2 * Deering's Codes, Civ. Proc. 1885,

Nev. 34. §659; Rev. Stat. Mont. 1880, 1st div.,

2 "The time ends with the period § 298. Griswold v. Boley, 1 Mont,

which the law allows for giving such 545.

notice; and when such time ends, to ^ Killip v. Empire Mill Co., 2 Nev.

hold that the court or j udge can extend 34.

it would be to affirm that the court or 6 Little v. Jacks, 67 Cal. 165.

judge can dispense with the require- '' Heinlen u. Heilbron, 71 Cal. 557;

meuts of the statute." Clarke. Crane, s.e. 12 Pac. Rep. 673.

57 Cal. 629, 632. Order of court " that 8 Bander v. Tyrrel, 59 Cal. 99 ; Ful-

therq be a stay of execution on the ton v. Hanna, 40Cal. 278; Wittenbrock

judgment in the case for a period of ?;. Belmer, 57 Cal. 12.

twenty days for the purpose of allow- * Hart v. Kimball, 72 Cal. 283; s. c.

ing the defendant to move for a new 13 Pac. Rep. 852.
trial" is not an order extending the

2086 MOTIONS FOR NEW TRIAL. [2 Tliomp. Tl'.,

§ 2751. (c.) Amendments of. — A notice of intention radi-
cally defective, cannot be amended after the time allowed by
statute for giving the notice has expired.^ Thus, where the
notice states that the motion will be made upon a statement of
the case, it cannot be amended so as to designate that it will be
made for the same cause ;ipon the minutes of the court. ^

§ 2752. Enumeration of Methods. — By the practice of the
various States there are five methods by which a motion for a
new trial may be made: 1, by mere application — the manner of
making the ordinary motion; 2, upon affidavits; 3, upon the
minutes of the court; 4, by bill of exceptions, and 5, on a state-
ment of the case. In a majority of the States the first two
modes only prevail. These methods will be considered in the
order enumerated.

§ 2753. By an Ordinary Motion: (a.) Suflaciency in
General. — A majority of the practice acts require the motion
to be in writing,-^ whether made in a civil or criminal case, while
a few provide that in criminal cases it '* may be in writing or
oral; " but when oral the grounds upon which it is asked " shall
be entered upon the minutes of the court." * In California, in

1 "To allow a notice filed witliiu Rev. Stat. lucl. 1888, §§ 562, 1842;
statutory time, but which was radi- Whaleyr. Gleason, 40Iud. 405; Shover
cally defective, to be amended after v. Jones, 32 Ind. 141; Stevens v.
the expiration of that time would be, Nevitt, 15 Ind. 224; Comp. Laws Kan.
in effect, to extend the time allowed by 1885, § 4119; Carroll's Ky. Civ. Code
statute for the giving of such notices, 1888, § 343; Reed v. Miller, 1 Bibb
which the courts have no power to (Ky.), 142; McAllister v. Conn. Mut.
do." Little V. Jacks, 67 Cal. 165. Life Lis. Co., 78 Ky. 535; Pub. Stats.

2 Coouey v. Furlong, G6 Cal. 520. Mass. 1882, ch. 214, § 28; Rev. Stat.
See Le Roy v. Rassette, 32 Cal. 171; Mo. 1879, § 1905; Comp. Stat. Neb.
Bear River &c. Co. v. Boles, 24 Cal. 1887, pp. 779 and 954; Code Civ. Proc,
354; Ellsasser v. Hunter, 26 Cal. 279; § 317; Cr. Code, §491; Rev. Stat Ohio,
Allen V. Hill, 16 Cal. 113; Thompson 1880, § 7351; 1 Tex. Civil Stat. (Sayle's
V. Lynch, 43 Cal. 482; Clark v. ed.), art. 1369; 2 Howell's Annot.
Crane, 57 Cal. 630. Mich. Stat. 1882, § 9576 ; Rev. Stat.

3 Ariz. Rev. Stat. 1887, par. 834; Wis., § 4719.

Ark. Dig. 1884, § 5154; Laws of Flu., * Ariz. Rev. Stat. 1887, Pen. Code,

McClellan's Dig. 1881, ch. 88, § 1; 1 par. 1760.

Tit. IX, Ch. LXXX.] manner of making motion.


criminal cases, the motion must be viva voce. The statute nei-
ther requires nor authorizes this motion to be made in writing.^

§2754. (b.) Specifications of Errors : (1.) In General. —

The practice of many of the States requires that the motion shall
particularly specify the reasons or grounds upon which it is made,
so as to direct the attention of the trial court to the precise error
complained of; ^ and it is provided in Arizona,^ Missouri/ Ore-
gon^ and Texas,^ that " no other grounds than those specified,
shall be heard or considered." But in many States, in assigning
the o;rounds, it is sufficient to a8sio;n the same in the language of
the statute, without other or further particularity J In Kentucky
it is held that a general statement in the language of the statute
is insufficient.^ The grounds must be set -forth with such cer-

^ If desired the grounds of the mo-
tion and the ruling may be embodied
in a bill of exceptions and can be re-
viewed here in no other way: People
V. Ah Sam, 41 Cal. 645, C51. In crimi-
nal cases neither a statement nor the
reporter's notes need be filed in sup-
port of the motion: People v. Fisher,
51 Cal. 319. It may be heard without
a bill of exceptions : People v. Keyser,
53 Cal. 183.

2 Rev. Stat. Ariz. 1887, Cr. Code,
par. 17G0; Hill v. Weisler, 49 Cal. 146;
Coleman v. Gilmore, 49 Cal. 340; Laws
of Fla., McClellau's Dig., 1881, ch. 88,
§ 1; Roouey v. Grant, 40 Ga. 191; 2
Starr & Curtiss' Annot. Stat. 111., ch-
110, par. 57; Ottawa &c. R. Co. v. Mc-
Math, 91 111. 104; Putnam v. Hannibal
&c. R. Co., 22 Mo. App. 589; Fox t\
Young, 22 Mo. App, 386 ; Huppert v.
Weisgerber, 25 Mo. App. 95 ; Marbourg
r. Smith, 11 Kan. 554; Carroll's Civil
Code Ky. 1888, § 340, subd. 8; Texas
Peual Code, 1879, art. 780; Spencer v.
Thistle, 13 Neb. 228; Jones v. Adams,
17 Nev. 84 ; Lamauce v. Byrnes, 17
Nev. 197.

3 Ariz. Rev. Stat. 1887, par. 834.

^ General provision for all motions :
1 Rev. Stat. Mo., § 3557.

'" 1 Hill's Annot. Laws Oregon, 1887,
p. 325, § 238.

6 1 Sayles' Tex. Rev. Stat. 1888, art.

' Comp. Stat. Neb. 1887, Cr. Code,
§ 491; Ibid., Code Civ. Proc, § 317;
Walrath v. State, 8 Neb. 88. Many
statutes contain similar provisions to
the Missouri statute that all motions
(whether for new trial or not) " must
be accompanied by a written specifica-
tion of the reasons upon which they
are. founded, and no reason not so
specified shall be used in support of
the motion." 1 Rev. Stat. Mo. 1879,
§ 3557. Motion was by mistake in-
dorsed with an erroneous title. Held,
that it should be treated as having
been filed with proper title: Harris v.
St. Louis &c. R. Co., 23 Mo. App.

8 Ohio &c. R. Co. V. Kuhn (Ky.),
5 S. W. Rep. 419.

2088 MOTIONS FOR NEW TRIAL. [2 Thomp. Tr.,

tainty that it may be known by a person of good understanding
what is relied upou.^ The motion is sufficiently specific, if it
clearly directs the court's attention to the points upon which the
mover claims erroneous rulings were made, and indicates, with rea-
sonable certainty , the particular ruling of which complaint is made. ^
A specification is a motion " because of errors of law occurring
at the trial," in too general and will be disregarded.^ Likewise
specifications that there was *' irregularity in the proceedings of
the court," ^ or " irregularities in the proceedings of the court by
which defendants were prevented from having a fair trial," *^
or that " the judgment of the court is contraiy to law," ^ or that
"the court erred in its judgment," ^ really mean nothing and are
too indefinite to be of any avail. Where the grounds are not
properly specified, affidavits will not be received in support of
the motion,^ the errors will be considered waived,^ and the motion
will be overruled. ^° An assignment that the finding of the court
is contrary to law is sufficient to present the question that the
trial was without arraignment or plea, where this appears from
the record. ^^ Where the new trial is asked on the ground of
alleged fraud practiced by the successful party, the motion need
not allege fraud in terms, but it is sufficient, if it sets out facts
which in law constitute fraud. ^^ An assignment that the verdict
is not " sustained by sufficient evidence," or "is contrary to
law," does not properly present the question of excessive dam-
ages. ^^ The proper specification in an action for tort, Avhere it
is sought to present the question of excessive damages, is that

1 Louisville &c. R. Co. v. McCoy, ^ Beal v. Stoue, 22 Iowa, 447.

81 Ky. 403. ^ Slater v. Sherman, 5 (Ky.),

2 Irwiu V. Smith, 72 lud. 482. 206; Louisville &c. R. Co. v. Mahony,
8 Meaux v. Mcaux, 81 Ky. 475. 7 (Ky.), 235; McLain v. Dibble,
< Tomer v. Deusmore, 8 Neb. 13 Bush (Ky.), 297.

384. ^o Roouey v. Graut, 40 Ga. 191.

, 5 Lowrie t). France, 7 Neb. 192. " Boweu v. State, 108 lud. 411;

« Howcott V. Kilbourn, 44 Ark. Tindall tj. State, 71 Ind. 314, Shoffner

213; Ferguson v. Ehrenberg, 39 Ark. v. State, 93 Ind. 519.

420. ^ Lafever v. Stoue, 55 Iowa, 49.

' Rhorer v. Brockhage, 15 Mo. App. " Ray v. Thompson, 2G Mo. App-
le, 25. 431.

Tit. IX, Ch. LXXX.] manner of making motion. 2089

' ' the damages are excessive," ^ and in actions on contracts " the
assessment of the amount of the recovery." ^

§ 2755. (2. ) Insufficient Evidence. — Where the motion is made
on the ground that the evidence is insufficient to support the ver-
dict or judgment, or that the verdict and judgment are against the
evidence, it has been held that the bill of exceptions accompany-
ing the motion should embody all theevidpnce given at the trial. '^
Specifications that the evidence is insufficient to justify the judg-
ment,^ or that the finding was for the wrong party ,^ or " that the
first finding is not sustained by the evidence," or " that the second
finding is not sustained by the evidence" (with reference
to the findings of the court), etc.,*^ — have been adjudged too gen-
eral to present the question of the sufficiency of evidence. But
it has been held that assignments " that the verdict is contrary to
the evidence," ^ or "that the decision is not sustained by the
evidence," ^ sufficiently presents a statutory cause " that the ver-
dict or judgment is not sustained by the evidence." An assign-
ment in the language of the statute, where it is so provided, is
sufficient for this ground.

§ 2756. (3.) In Admitting and Excluding Evidence. — Where
the motion is made on the ground that errors were committed by
the court in admitting improper evidence, or in excluding proper
evidence, it must clearly designate or specify with reasonable
certainty, such evidence.^ ' It is not sufficient merely to refer to

1 Lake Erie &c. R. Co. v. Acres, 108 synonymous with "finding," the dif-
Ind. 548; s. c. 9 N. E. Rep. 453; Dix ference being only technical: Weston
V. Akers, 30 Ind. 431; Frank v. Kess- v. Johnson, 48 lud. 1.

ler, 30 lud. 8. » Reeves v. Plough, 41 lud. 204;

2 Lake Erie &c. R. Co. v. Acres, 108 Grant v. Westfall, 57 lud. 121; Coryell
Ind. 548; s. c. 9 N. E. Rep. 453. v. Stone, 62 Ind. 307; Galvin v. State,

3 Beal V. Stone, 22 Iowa, 447. G4 Ind. 96; Evans v. State, 67 Ind. 68;

4 Kelly V. Mack, 49 Cal. 523. Louisville &c. R. Co. ■;;. Thompson, 107

5 Heine v. Morrison, 13 Mo. App. Ind. 442; Sertel v. Graeter, 112 Ind.
577. 117; s. c. 11 Western Rep. 234; Frei-

6 Eddelbuttelv. Durrell, 55Cal. 277. tag v. Burk, 45 lud. 38; Sparks v.
' Collins V. Maghee, 32 Ind. 268. Heritage, 45 Ind. 66; Rogers v. Rogers,
* "Decision" as here used is 46 lud. 1.

2090 MOTIONS roil new trial. [2 Thomp. Tr.,

it as " the offer written in the evidence." ^ Assignments " that
the court erred in admitting and excluding evidence," ^ or that
the "court erred in excluding material and competent evidence
offered by defendant," ^ or that " the court erred in refusing to
admit legal testimony offered by plaintiff," * — point to nothing
and are too indetinite. But, as will be shown hereafter, the mo-
tion may refer to a bill of exceptions previouf^ly tiled for a state-
ment of the particular evidence, admitted or rejected, and if, by
such reference, the particular evidence clearly and explicitly ap-
pears, it is sufficient to present the question; ^ aliter, if the refer-
ence is to a bill tiled after the motion.*^

§ 2757. (4.) In Instructions. — It has been held that,
where a new trial is asked upon the ground of alleged errors of
the court in giving improper, or in refusing proper instructions,
the bill of exceptions accompanying the motion should embody
such instructions.^ But here the same rule applies as that which
<Toverns the specification of the motion in the exclusion and re-
jection of evidence ; and it is sufficient if the instructions to which
objections are made, are clearly pointed out,^ either b}^ number
or by some other appropriate method of identification.^ Thus,
an assio-nment that the court committed " error in refusing to
give to the jury instructions numbered one to eleven, inclusive,
asked by defendant," is sufficient. ^^ Assignments that " the in-
structions given by the court to the jury are erroneous in this:
that the same are contrary to law," and that " the court erred
in instructing the jury,"^^ or " that error of law occurred at the

1 McGee r. Robbins, 58 Ind. 4G3. ' Bcal v. Stoue, 22 Iowa, 447.

2 Edmouds v. State, 34 Ark. 720. « Gi-^xut v. Westfull, 57 lud. 121 ;

3 Parks V. Hill, 45 lud. 172. Reeves v. Plouy;h, 41 lud. 204.

4 Miller 17. Lebanou Lod-^'e, 88 lud. " Weir v. Burliugtou &e. R. Co., 19
280. See Musselmau r. Musselmau, Neb. 212; Douglass r. Blaukeuship, 50
44 lud. 100. Ind. ICO.

s IClllott V. Russell, 92 Ind. 526. i" Nofsiuger v. Reynolds, 52 lud.

« lb.; North-W. Ins. Co.w. Hazelett, 218.

105 lud. 212; Harvey v. Huston, 94 i' Bartholomew v. Laugsdale, 35

Ind. .527; Cain v. Goda, 84 Ind. 209; Ind. 278.
Arbuckle v. Biederiuau, 94 lud. 1G9.

Tit. IX, Ch. LXXX.] manner of making motion.


trial of the cause, which was excepted to at the time by the
phiintiff, in this: that the court, in giving instructions to the
jury, gave instructions contrary to law," have been held to be
sufficiently specific to raise the question of the correctness of any
instruction given. ^ An assignment simply that "the charge is
erroneous" is clearly bad. ^ So, under an assignment of "errors of
law occurring at the trial," the sufficiency of the instructions can-
not be considered,^ unless errors appear in the bill of exceptions.*

§ 2758. By Motion Supported by Affidavits : («.) In Gen-
eral. — By the practice of a majority of the States, where the
grounds of new trial are other than that the verdict or judgment
are contrary to the law or evidence, or that the trial court erred in
some matter of law, the motion must be supported by affidavit,
unless it is made upon the minutes of the court, by bill of ex-
ceptions or a statement of the case, according to the practice of
many States. The grounds usually enumerated are (1) irregu-
larities; (2) misconduct of the jury or prevailing party (in crim-
inal case the misconduct of the State's witnesses is generally
named) ; (3) accident or surprise, which ordinary prudence could
not have guarded against; and (4) newly discovered evidence,
material to the party applying which he could not, with reasona-
ble diligence, have discovered and produced at the trial. Many
States include all the grounds, others only part of them.^ In

1 Dawson v. Coffman, 28 Ind. 220
See Hortou v. Wilson, 25 Ind. 316
Contra, Robinson v. Hadley, 14 Ind
417; Elliott v. Woodward, 18 Ind, 183
Snodgrass v. Hunt, 15 Ind. 274;
Home V. Williams, 23 Ind. 37.

2 Darnell v. State, 15 Tex. App. 70.

3 Hastings &c. R. Co. v. lugalls, 15
Neb. 123.

•* Cleveland Paper Co. v. Banks, 15
Neb. 20. See Weybright v. Fleming,
40 Ohio St. 52 ; Baker v. Peudergast,
32 Ohio St. 494.

s Ark. Dig. 1884, § 5154; Rev. Stat.
Idaho, 1887, § 4440; Deering's Cal.

Code Civ. Proc, § 658; Rev. Stat.

Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 102 of 126)