On a motion for rehearing, appellant’s counsel asked the court to modify its judgment so as to direct a new trial, as the only means of preventing obvious and gross injustice, citing, in support of this practice, Law v. Grant, 37 Wis., 548; McWilliams v. Bannister, 40 id., 489; Manning v. Grant, 42 id., 555; Tay. Stats., ch. 139, § 7, p. 1632; Griffin v. Marquardt, 17 N. Y., 32; Clayton v. Yarrington, 33 Barb., 146; 2 Til. & Shearm. Pr., 560.
Mr. Finney, contra, argued, among other things, that the discretionary power of this court in awarding new trials, under the statute, applies only where there has been a reversal for error, and all the cases cited on the other side from appellate courts were of that character; and that, even in the trial court, a new trial will not be granted for a mere mistake of law. 1 Gra. & Wat., 195; 2 id., 145, note; 5 Wend., 127; Tait v. Foster, 1 Pin., 514, 517; Dexter v. Arnold, 5 Mass., 302, 315; Massie v. Graham, 3 McLean, 41, 52; Purcell v. Miner, 4 Wall., 521; Rubber Co. v. Goodyear, 9 id., 805, 806; McMicken v. Perin, 22 How. (U. S.), 282; Livingston v. Hubbs, 3 Johns. Ch., 125; Smith v. Lowry, 1 id., 321, 322; Wiser v. Blatchley, id., 488; Floyd v. Jane, 6 id., 482, 483.
Ryan, C. J.The learned counsel who make this motion, do not question the ground of our decision of the appeal, or the decision itself. They ask only that the judgment of affirmance be so modified as to direct a new trial in the court below.
*41"We know of no case in this court, or indeed elsewhere, in which a judgment of affirmance has directed a new trial. Indeed affirmance of a judgment, ex vi termvni, seems to preclude a new trial. For, in the ordinary course of practice, a trial after judgment is unknown.
When judgment in a suit in equity is reversed, it rests in the discretion of the court to direct final judgment for the successful party, or in proper cases to direct a new trial, or in doubtful cases to remit the question of a new trial to the discretion of the court below. Du Pont v. Davis, 35 Wis., 631; Law v. Grant, 37 id., 548; Mc Williams v. Bannister, 40 id., 489. And even this discretion in equity cases upon reversal, the court takes by statute. Miner v. Medbury, 7 Wis., 100; Carney v. Emmons, 9 id., 114; Du Pont v. Davis, supra. There is neither statute to authorize, nor practice to sanction, a discretion for a new trial upon affirmance. Such a discretion would virtually convert affirmance into reversal.
We affirmed the judgment in this case with reluctance. And with like reluctance we must leave the appellant to the consequences of the judgment. It is better that parties should sometimes suffer undue results of their litigation, than that courts should assume arbitrary discretion to relieve them, by doing violence to the law. Misera servitus ubi jus vagum.
By the'Cotvrt. — The motion is denied.