November 23, 1932. The opinion of the Court was delivered by This appeal is from an order of his Honor, Judge Dennis, granting plaintiff's motion for a new trial.
The facts of the case, briefly stated, are these: On April 5, 1930, a bicycle being ridden by one Nelson, a messenger of the defendant company, collided with plaintiff's intestate, Blackwell, who was thereby severely injured. Some time thereafter Blackwell died from the injuries received, and the plaintiff, as administratrix of his estate, brought two suits against the company and Nelson, one for damages for suffering and expenses and the other for wrongful death. Both cases were tried together, the jury finding for the defendants. Immediately after the verdicts were published, Mr. Hyman, representing the plaintiff, asked the Court to note on its record a motion for a new trial. The Court did so, making the following notation on the calendar in each case: "Verdict for defts. Motion for new trial." The Circuit Judge afterwards stated that this notation was intended by him as being equivalent to marking the motion "heard," with the understanding that arguments would be made on *Page 504 some subsequent date by agreement between the Court and counsel, and no question is raised as to this construction of the notation. The Court adjourned sine die on May 28, 1931, and, after some correspondence between counsel representing the respective parties, the motion was argued on July 24, 1931, and later the Court filed an order granting a new trial on the following ground: "That the remarks and manner of the Court throughout the trial of this case tended to create in the minds of the jury a conviction that the Court did not regard the claim of the plaintiff as meritorious."
Judge Dennis in his order said, in part: "I have carefully reviewed the record and considered the argument of counsel in relation to this ground of the motion. It is fundamental that the full hearing and fair trial of the facts by jury to which a litigant is entitled should not be impaired by the slightest indication to the jury on the part of the Court as to the opinion of the presiding Judge on the facts. The trial of this case was long and tedious. It came on for hearing at the end of a two weeks' term, and I am constrained to say that in my efforts to speed the trial, I was not sufficiently careful to conceal from the jury my opinion on the merits of the litigation; at least it seems to me from a reading of the record, and my recollection of the incidents of the trial as confirmed thereby, that I may have given the jury ground to think that in my opinion the merits of the case rested with the defendant. It is apparent that several times I have made rulings in such terms and in such a manner as may have indicated this to the jury."
It is well settled that an order granting or refusing a new trial based upon a question of fact, or of both law and fact, is not appealable. In the present case the new trial was granted solely on a question of fact, and if nothing else appeared in the appeal it would be proper to dismiss it on that ground. As the defendants, however, raise the question of jurisdiction, the appeal will be considered for the purpose of disposing of that matter. *Page 505
We may say, in passing, that no one could possibly know better than the trial Judge, in what terms and in what manner he made his rulings and whether he may have thereby indicated to the jury his opinion as to the merits of the case. Feeling as he did about the matter, the fair-minded presiding Judge could not have done other than grant a new trial.
With regard to the question of jurisdiction, the defendants take the position in argument that Judge Dennis was without jurisdiction to pass upon the motion after the Court adjourned sine die for the reason that at the time the motion was made by counsel for plaintiff in open Court and the notations were entered by the Court on its calendar, no one of defendants' counsel was present and consented to or acquiesced in what was done.
It is true that, under our practice, the trial Judge, upon motion for a new trial, may mark the case "heard" and decide the motion after final adjournment of the Court: but, in order for the trial Court to retain jurisdiction of the matter after sine die adjournment, it is not only proper but necessary that counsel representing the opposition — the defendants in this case — consent to such arrangement or acquiesce therein by making no objection thereto at the time. However, we do not find in the transcript of record before us any statement of fact that, at the time the motion was made and the notations were entered on the calendar, counsel for the defendants were not present and did not consent thereto or acquiesce therein; such statement is made only in the argument of defendants' counsel and is not agreed to by counsel for plaintiff. This Court has repeatedly held that a statement of fact not appearing in the transcript of record or agreed to between counsel representing the litigants will not be accepted as a fact by this Court on appeal. The presumption arises that the motion was made and acted upon in accordance with the usual practice in the trial Courts of this State with respect to such matters, *Page 506 and that counsel for the defendants consented to the arrangement or acquiesced therein. When the defendants, as a basis for attacking the trial Court's jurisdiction to decide the motion after its final adjournment, contend that the facts are otherwise, they are bound, in order to prevail, to show in the record on appeal to this Court that such is the case. As they have failed to do so, the appeal must necessarily fall.
The order appealed from is affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES CARTER and BONHAM concur.