(dissenting).
In my opinion, the majority has misconceived the meaning of Rule 59, and, if its decision stands, the rule will be distorted in its application, to the serious prejudice of litigants in the Federal courts. The important question of the case is whether appellant’s motion of November 17, 1941 was a motion for new trial within the meaning of Rule 59(a) (b). The majority concludes that it was, by the following process of reasoning: (1) A new trial may be granted, under the rule, for any of the reasons for which rehearings have heretofore been granted in suits in equity, under Equity Rule 69; (2) under Equity Rule 69, rehearings were granted only upon such grounds as would authorize a new trial in an action at law; (3) therefore, all petitions which are entitled motions for rehearing are, under the rules, in all respects, the same as motions for new trials.
The logical conclusion which flows from the two premises of the majority opinion is that the grounds which may properly be urged in support of petitions for rehearing and for new trial are the same. It would seem to follow that, if a motion does not purport to be for a new trial, and is based on no ground which is appropriate to such a motion, it is not in fact a motion for new trial, even though the word rehearing does appear in it. That is the situation of the present case.1 The language of the New York Court in Belmont v. Erie R. Co.2 is particularly apt in explaining it: “Some confusion has arisen, perhaps, from the use of the word ‘rehearing’ in the motion papers, when this matter first came before me. That term, technically speaking, was appropriate only to the proceeding in chancery by which a certain class of errors in a decree or decretal order could, before enrollment, be corrected. But it had no application to orders made upon mere motion. Those could not be reached by a ‘rehearing’, but were varied or discharged by the court, on application by motion.” [Italics supplied]
I agree that it was the purpose of the rule-makers to include rehearings within the compass of Rule 59, so far as a rehearing in equity was the equivalent of a new trial. It was also, undoubtedly, their purpose to limit, severely, the time within which motions for new trials may be filed. The reasons for the rule are to minimize the “monstrous penalty”3 which results from the granting of a new trial; to avoid so far as possible the reexamination of facts once judicially determined; to save the time, trouble, and expense involved in reassembling juries, recalling witnesses, and otherwise repeating the necessarily elaborate trial process.
It would be an entirely different matter to require a person, who has never had his constitutionally guaranteed first trial, to conform to the severe limitations of a rule regulating new trials. No such requirement existed prior to adoption of the rules. An examination of the authorities reveals, clearly, that a motion for new trial is not, *777and never was, intended to challenge orders which determine questions of law, preliminary to trial; such as was determined by the District Court in the present case. Blackstone defined a new tidal as4 “a rehearing of the cause before another jury; but with as little prejudice to either party, as if it had never been heard before.” His discussion of the subject makes it perfectly clear that it meant to him the retrial of an issue of fact. In the case of Bright v. Eynon 5 decided in 1757, Lord Mansfield said: “Trials by jury, in civil causes, could not subsist now, without a power, somewhere, to grant new trials. If an erroneous judgment be given in point of law, there are many ways to review and set it right. Where a court judges of fact upon depositions in writing, their sentence or decree may, many ways, be reviewed and set right. But a general verdict can only be set right by a new trial: which is no more than having the cause more deliberately considered by another jury; where there is a reasonable doubt, or perhaps a certainty, that justice has not been done. * * * The reasons for granting a new trial must be collected from the whole evidence, and from the nature of the case considered under all its circumstances.” In the case of Dodge v. Bell6 the Supreme Court of Minnesota said: “The causes for a new trial specified in section 253, with the modes for presenting the application provided in sections 254 and 255, show that the terms ‘new trial’, when used in the statute, mean, as at the common law, a retrial of issues of fact.” In Garden City Feeder Co. v. Commissioner of Internal Revenue, the Court of Appeals for the Eighth Circuit said: 7 “At common law a new trial was a retrial in the same court on an issue or issues of fact after a verdict by a jury, and a new trial recognizes a complete trial which for sufficient reason has been set aside, so that the issues may be relitigated.” [Italics supplied]
The new rules of federal civil procedure are based largely upon the experience of states, in which such rules as the one presently involved have been the subject of interpretation for many years. With monotonous uniformity the decisions of those states define a motion for new trial as an application for retrial of an issue or issues of fact; 8 and a new trial, itself, as a reexamination of an issue or issues of fact.9 In the code states a new trial is frequently defined by statute as a reexamination in the same court of an issue of fact, after a verdict by a jury, report of a referee or decision by the court, or in similar terms; invariably emphasizing that it is an issue of fact which is to be retried, after a trial already had.10 Whether the former trial was by a jury, the court, or upon the re*778port of a referee, may be immaterial; but there must have been a trial of an issue of fact in any event.11 And in the absence of a trial of an issue of fact, the court has no power to entertain, or grant, a motion for a new trial.12 The Supreme Court of Alabama says of a new trial: “There must have been the trial and decision of an issue of fact, and the motion must involve a reexamination of that issue after a trial and decision of it.”13 The Supreme Court of Montana, interpreting a similar rule, held:14 “ * * * the clear intendment of the statute is that the notice of motion for a new trial shall only be given after all the issues of fact necessary to a determination of the whole case upon the pleadings have been decided and determined.” The Texas Court of Appeals has said of a new trial that it “contemplates that a case has been tried, a judgment rendered, and on motion therefor said judgment set aside and a new trial granted.” It distinguished the situation “where, before a trial is completed and judgment rendered, the trial court concludes there is some error or irregularity that prevents a proper judgment being rendered, in which event he may declare a mistrial.”15 The same point is made by the Supreme Court of California, interpreting a similar rule in the following language:16 “Where the motion embraces several issues, some of which are tried by the court and some by a jury, a notice of intention to move for a new trial, served and filed after the verdict on the issues submitted to the jury, but before the decision on the issues tried by the court, is premature, and gives ‘to the court no power to act upon the motion which should thereafter be made under the notice.’ ” A motion for new trial is unauthorized where a case is tried upon an agreed statement of facts,17 or when it is submitted on the pleadings.18 Even issues of fact may not be the subject of a new trial, if they arise in connection with motions, such as one for stay of execution, as the only issues of fact which may be retriable are those raised by ordinary formal pleadings.19
Specifically, a motion for new trial cannot be used to challenge an order which determines a question of law, upon a motion made preliminary to trial. 20 It for this reason that the penetrating distinction drawn by the Kentucky Court of Appeals in Riglesberger v. Bailey 21 is peculiarly apt in the present case: “Upon a default judgment, there has manifestly been no trial, verdict, or decision, within the meaning of the foregoing provisions as to new trials; and we think, therefore, the provisions as to application within three days is inapplicable. There being no provision controlling the matter, the common-law rule must prevail, by which courts have control over their judgments during the term at which they are rendered; and consequently motions to set aside such judgments may be made at any time during such term. There would seem to be, moreover, no special reason for requiring motions of this kind to be made within three days. This court has several times said there is good reason for requiring motions for a new trial of the verdict of a jury or trial by a court to be made speedily; that is, the danger that the incidents of the trial may be forgotten or remembered differently. No such reasons exist as to default judgments; and while *779a contrary view seems to have been taken in Harris v. Ray, 1855, 15 B.Mon. [Ky.] 628, we are not disposed to follow it, and extend the application of technical rules when not required to apply them either by the letter or the reason of the law. The case cited has long ceased to be generally followed, and is overruled.” [Italics supplied] The same results follow, and a motion for new trial is improper, whether the order challenged is for the entry of a default 22 or for its vacation.23 In neither case is an issue of fact tried; hence, there is no basis upon which a new trial could be had.
Questions as to the sufficiency of pleadings,24 and as to the jurisdiction of the court, cannot be raised by motions for new trial.25 Hence, a motion for new trial, challenging the court’s order sustaining or overruling a demurrer, is a nullity.26 The order of a court denying a motion to dissolve a temporary injunction cannot be made the subject of a motion for a new trial;27 nor can the dismissal of a plea.28 It has been held in some states that, as a motion for a nonsuit admits every material fact which the evidence tends to prove, it presents only a question of law; and that if it is granted and a judgment of dismissal entered, thus terminating the case before a verdict or decision upon the issues of fact, a motion for new trial is not the proper way of testing the correctness of the ruling.29 An order reinstating a cause for trial, following a voluntary nonsuit, is not an order for new trial, because there has been no previous examination of an issue of fact.30
The only questions of law which may he presented by motion for new trial are those which arise upon the pleadings,31 during the trial of issues of fact.32 Hence, even a motion for rehearing of an order which *780follows á trial is not necessarily the equivalent of a motion for new trial. Suppose, for example, that a trial court grants a motion for a new trial. Opposing counsel then petitions for a rehearing upon the court’s action in granting it. Would anyone seriously contend that the petition is in all respects the same as a motion for a new trial? What is sought in such a case is the exact opposite of a new trial; its purpose is to prevent a new trial and to reinstate the verdict. But, presumably, the theory of the majority opinion would require the conclusion that such a motion is one for a new trial.
It has been held that the order of a court denying a motion to set aside a judgment is not the subject of a motion for new trial.33 The Supreme Court of Colorado has said: “The motion for judgment notwithstanding •the verdict raises no question of fact, but of law only; consequently a motion for a new trial has no application to a ruling upon such motion.” 34 The hearing of a motion to correct the record of a judgment is not a trial and provides no basis for a motion for new trial; 35 nor does an exception to the form or sufficiency of a decree.36
In the code states where the procedures of law and equity have been integrated, as in the new federal rules, the conditions which surround the use of motions for new trials are the same in both types of cases.37 That is the reason why the code definitions of new trial speak in terms of retrial of issues of fact, following either the verdict of a jury or determination of such issues of fact by the judge, himself, or upon the report of a referee or master. Many of the opinions heretofore cited in this opinion decided cases which, under the older forms of practice, would have been in equity.
Approaching the problem from another angle, we get the same result, contrary to that reached by the majority opinion. A “rehearing,” when used in the sense of a new trial, is defined by the authorities as a second hearing of the cause involved in a decree or order entered by an equity court on the former hearing.38 In states upon whose experience the federal civil procedure rules are based, rehearing, when used in the sense of a new trial, has been defined as a reopening of the case for a re-determination of basic facts; 39 with notice to the parties, and an opportunity for them to be heard.40 In this sense, only, is it *781properly regarded as synonymous with new trial41 The vital distinction was clearly made by the Supreme Court of Michigan in the McLean case;42 “Appellant contends that the Department had no power to amend its original order, since this was, in effect, equivalent to the granting of a rehearing. Guss v. Ford Motor Co., 275 Mich. 30, 265 N.W. 515. The rule of the Guss case, precluding the granting of rehearings, does not mean that the Department may not correct a mistake in its original order. A rehearing involves a reopening of ttye case for a redetermination of, basic facts” [Italics supplied.]
The connotation which should be given to the word rehearing, as it was used by appellant in the present case, is much more nearly that which is given to the word when used in seeking reconsideration, by an appellate court, of its own decision, upon questions of law; namely, “an appeal from this court to itself.” 43 The Supreme Court has defined it as follows: “Ordinarily, a petition for rehearing is for the purpose of directing attention to matters said to have been overlooked or mistakenly conceived in the original decision, and thus invites a reconsideration upon the record upon which that decision rested.” 44 [Italics supplied] The purpose of such a petition is to give the court an opportunity to correct its own errors. A trial court needs that opportunity, and is entitled to the privilege, just as much as an appellate court. No monstrous penalty of a new trial is necessary to achieve this end. We should encourage rather than discourage, open-minded review of such petitions, and prompt action thereon.
When used in this sense, a petition for rehearing resemblss, also, a bill of review, when such a bill is used for the limited purpose of securing reexamination of questions of law, on the theory that there is error apparent upon the face of the record.45 As we pointed out in Fraser v. Doing,46 it was the intention of the rule-makers to preserve the remedy formerly available by bill of review; that the purpose of the bill of review “is to permit the same court to examine its earlier record, and to answer the challenge made to its accuracy;” but that a bill of review is not available until the time for a motion for new trial has passed. What possible purpose could be served by including within the scope of a motion for new trial all requests for reconsideration, by the trial court, of its rulings upon preliminary questions of law, when, by waiting until the time for requesting a new trial has passed, a litigant can raise the same questions by bill of review. Such an interpretation of Rule 59 would result in serious prejudice to litigants, in the early stages of litigation, and an undesirable stimulation of the filing of bills of review.
The majority’s interpretation of Equity Rule 69 violates, also, it seems to me, the spirit of the other equity rules. Thus, Rule 72 provided, generally, for the correction, not only of clerical mistakes in decrees or decretal orders, but of errors arising from accidental slip or omission, “upon petition, without the form or expense of a rehearing.” [Italics supplied] This provision is carried over into the new rules, in Rule 60 (a). It is made applicable to “judgments, orders, or other parts of the record and errors therein arising from oversight or omission,” upon the initiative of the court, “or on the motion of any party.” [Italics supplied] Several of the equity rules provided expressly for corrective action, as applied to preliminary rulings. Rule 5 provided for the suspension, alteration, or rescinding by the judge, upon special cause shown, of actions by the clerk in issuing process, taking bills pro confesso, and otherwise. Rule 17 provided for the setting aside of orders pro confesso, or enlarging the time for filing answer; upon cause shown, upon motion and affidavit. Rule 29 abolished demurrers and pleas, and provided: “Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court.” [Italics supplied] That was exact*782ly the situation of the present case; the principal case never came to trial: the situation was not one appropriate for rehearing in the sense of a new trial. Instead, it was one appropriate for application of Rule 19, which provided, generally, that process, proceedings, pleadings, or record might be amended by permission of the court and that:' "The court, at every stage of the proceeding, must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Misnaming appellant’s motion to vacate, by calling it a petition for rehearing, certainly did not constitute an error which affected the substantial rights of the parties. In short, there was nothing in any of the equity rules to suggest that a rehearing — in the sense of a new trial — was either necessary or proper, to secure reexamination by the court of a ruling upon a question of law, preliminary to trial.
Finally, although the original order of the District Court was final in the sense that it was appealable, it was not final in the sense that it disposed of the case on the merits.' The authorities cited herein dem - onstrate that a new trial necessarily assumes an adjudication on the merits; and that a motion for a new trial is improper in any other event. Not only is this true, but Rule 41(b) of the new. rules of civil procedure47 expressly provides that a dismissal for lack of jurisdiction does not operate as an adjudication upon the merits. The dismissal in the present case was for lack of jurisdiction because of defect of parties. The grounds of both motions to dismiss were clearly so specified, and the order of dismissal in each case was based expressly upon the motion.
Generally speaking, it may be said that the new rules evidence no intention of penalizing litigants because of such informalities in their pleadings, as appeared in appellant’s motion in the present case. Instead, it is their clear purpose “to secure the just, speedy, and inexpensive determination of every action;” 48 to avoid the old conception of procedural rules “as ends in themselves upon whose rigid altar has ultimate justice been sacrificed.” 49
The title' of the motion is: “Plaintiff’s Motion for Rehearing and to Vacate Order Dismissing Complaint and To Deny Defendant’s Motions to Dismiss the Complaint.” The body of the motion reads: “Now comes the Plaintiff, Safeway Stores, Incorporated, and moves the Court for rehearing; and moves the Court to vacate the Order dated October 17, .1941, dismissing the Complaint on motion of the defendant, Conway P. Coe, Commissioner of Patents, and to deny said defendant’s Motion to Dismiss the Complaint, and to require said defendant to answer. The ground for this motion is: That dismissal of the Complaint is contrary to the subsequent holding in— Tomlinson of High Point v. Coe, Commissioner of Patents ([74 App.D.C. 364, 123 F.2d 65] decided Oct 27, 1941). An oral hearing is requested.”
52 Barb., N.V., 637, 651.
1 Wigmore, Evidence (3d ed„ 1940) § 21, p. 395: “Just as English legislators, after yielding to the twenty years’ pleadings of Romilly, discovered after all that the enjoyment of the right of property in chattels could survive, without the fancied protection of the death-penalty for larceny, — so we shall some day awake to be convinced that a system of necessary rules of Evidence can exist and be obeyed, without affixing indiscriminately to every contravention of them the monstrous penalty of a new trial.”; cited by Edgerton, J., dissenting in Lindsey v. United States, 77 U.S.App.D.C. 1, 133 F.2d 368, 380; Freid v. McGrath, 76 U.S.App.D.C. 388, 133 F.2d 350, 355.
3 Bl.Comm. 391, 392: “Nor is it granted where the scales of evidence hang nearly equal: that which leans against the former verdict ought always very strongly to preponderate.” Accord: Gott v. Judge of Superior Court, 42 Mich. 625, 4 N.W. 529.
1 Burr. 390, 393, 395, 97 Eng.Rep. 365, 366, 367. See, generally, Gunn v. Union R. Co., 23 R.I. 289, 49 A. 999, 1002; Warner v. Goding, 91 Fla. 260, 107 So. 406.
37 Minn. 382, 383, 34 N.W. 739, 740.
75 F.2d 804, 805, 806.
Watkins v. Sedberry, 155 Tenn. 148, 290 S.W. 970; Buchanan v. James, 134 Ga. 475, 68 S.E. 72; Schneidt v. Schneidt, 69 Ind.App. 666, 122 N.E. 588; Chivera v. Board of Com’rs, 62 Okl. 2, 161 P. 822, L.R.A.1917B, 1296; Emerson v. Eldorado Ditch Co., 18 Mont. 247, 252, 44 P. 969, 971; Gray v. Cotton, 174 Cal. 256, 258, 162 P. 1019, 1020.
Humphreys v. Walton, 2 Bush 580, 65 Ky. 580; Warner v. Goding, 91 Fla. 260, 265, 107 So. 406, 408; Mobile Light & R. Co. v. Hansen, 135 Ala. 284, 33 So. 664; Zaleski v. Clark, 45 Conn. 397, 401, 404; Darling v. Atchison, T. & S. F. R. Co., 76 Kan. 893, 93 P. 612, 94 P. 202; Younger v. Moore, 8 Cal.App. 237, 241, 96 P. 1093, 1095; Mitter v. Black Diamond Coal Co., 28 Wyo. 439, 445, 206 P. 152, 154; Armstrong v. Gresham, 70 Colo. 502, 202 P. 706; Oxford v. State, 80 Okl. 103, 194 P. 101; Taylor v. Taylor, 61 Or. 257, 121 P. 431, 964; Caldwell v. Wells, 16 Idaho 459, 101 P. 812. See Brown v. Moore, 79 Me. 216, 9 A. 355; Hartman v. Rose, N.J.Sup., 20 A. 29.
Ray v. Arnett, 32 Ky. Law Rep. 562, 106 S.W. 828; Riglesberger v. Bailey, 102 Ky. 608, 44 S.W. 118; Bottineau Land & Loan Co. v. Hintze, 150 Iowa 646, 125 N.W. 842; State v. Southwestern Bell Telephone Co., 115 Kan. 236, 267, 223 P. 771, 786; Pennsylvania Co. v. Potter, 108 Okl. 49, 51, 233 P. 700, 701; Howland v. Day, 125 Wash. 480, 491, 216 P. 864, 868; Tucker v. Hypotheek Min. & Mill Co., 31 Idaho 466, 173 P. 749; In re Stinger’s Estate, 61 Mont. 173, 201 P. 693; “W” Sheep Co. v. Pine Dome Oil Co., 32 Wyo. 61, 66, 228 P. 799, 801; School Dist. No. 14 v. School Dist. No. 4, 64 Ark. 483, 43 S.W. 501.
Garden City Feeder Co. v. Commissioner of Internal Rev., 8 Cir., 75 F.2d 804, 806; Buchanan v. James, 134 Ga. 475, 68 S.E. 72; Tucker v. Hypotheek Min. & Mill. Co., 31 Idaho 466, 173 P. 749; Rosner v. Cohn, 81 N.J.L. 343, 79 A. 1056; Brunnabend v. Tibbles, 76 Mont. 288, 246 P. 536; Buckhouse v. Parsons, 60 Mont. 156, 162, 198 P. 444, 445.
Tucker v. Hypotheek Min. & Mill. Co., 31 Idaho 466, 173 P. 749; Rooker v. Bruce, 171 Ind. 86, 85 N.E. 351; In re Keating’s Estate, 162 Cal. 406, 410, 122 P. 1079, 1081.
Mobile Light & R. Co. v. Hansen, 135 Ala. 284, 33 So. 664.
Calvert v. Anderson, 78 Mont. 334, 340, 254 P. 184, 186. Accord: Boardman Co. v. Board of Com’rs, 70 Okl. 245, 174 P. 272, overruled by Chicago, R. I. & P. R. Co. v. Reynolds, 157 Okl. 268, 12 P.2d 208, 212, 89 A.L.R. 5, but on another point.
Cortimeglia v. Herron, Tex.Civ.App., 281 S.W. 305, 306.
Barnes v. Foley, 189 Cal. 226, 207 P. 885.
Durant v. Nesbit, 59 Okl. 11, 157 P. 353; Monteverde v. Superior Court, 60 Cal.App. 252, 257, 212 P. 690, 692.
Abbey Land & Improvement Co. v. San Mateo County, 167 Cal. 434, 139 P. 1068, 52 L.R.A.,N.S., 408, Ann.Cas.1915C, 804.
Gray v. Cotton, 174 Cal. 256, 162 P. 1019; Gormally v. Simon, 42 Mont. 219, 111 P. 1033.
Younger v. Moore, 8 Cal.App. 237, 241, 96 P. 1093, 1095.
102 Ky. 608, 44 S.W. 118.
Mitter v. Black Diamond Coal Co., 28 Wyo. 439, 445, 206 P. 352, 154; Ervin School Tp. v. Tapp, 121 Ind. 463, 23 N.E. 505; State v. District Court, 49 Mont. 595, 344 P. 159, 161; Price & Miller v. Ratcliffe, 47 Okl. 370, 148 P. 153; Adams & Adams v. Howard, 14 Vt. 158.
Taylor v. Taylor, 61 Or. 257, 121 P. 431, 964; Crossland v. Admire, 118 Mo. 87, 24 S.W. 154.
Pearl v. Rawdin, 5 Day, Conn., 244, 250; Harbin v. Hunt, 151 Ga. 60, 105 S.E. 842; Simpson v. Wicker, 320 Ga. 418, 47 S.E. 965, 1 Ann.Cas. 542 (failure to attach a bill of particulars); Mann v. Barkley, 21 Ind.App. 152, 51 N.E. 946; Gravelle v. Minneapolis & St. L. R. Co., C.C., 11 F. 569, 571; Johnson v. Shuford, 91 Conn. 3, 98 A. 333; Baldwin v. O’Brian, 1 N.J.L. 418, 1 Am. Dec. 208; Goslin v. Wilcock, K.B., 2 Wils. 303, 95 Eng.Rep. 824; Lupton v. Coffel, 47 Ind.App. 446, 94 N.E. 799; Knickerbocker Ice Co. v. Gray, 165 Ind. 140, 72 N.E. 869, 6 Ann.Cas. 607; Haugh v. Haywood, 69 Ind.App. 286, 121 N.E. 671.
State v. Cady, 47 Conn. 44; Houssels v. Coe & Hampton, Tex.Civ.App., 159 S.W. 864, 866. Cf. Alden v. Superior Court, 186 Cal. 309, 315, 199 P. 29, 32 (where the question of jurisdiction required the trial of an issue of fact).
Schneidt v. Schneidt, 69 Ind.App. 666, 122 N.E. 588; Chivers v. Board of Com’rs, 62 Okl. 2, 161 P. 822; Vickers v. Robinson, 157 Ga. 731, 122 S.E. 405; Perry v. Aeree, 165 Ga. 446, 141 S.E. 212; Jenness v. Co-Operative Publishing Co., 36 Idaho 697, 213 P. 351.
Anderson v. Englehart, 18 Wyo. 196, 105 P. 571, Ann.Cas.1912C, 894.
Butler v. Georgia Agricultural Credit Corporation, 37 Ga.App. 390, 140 S.E. 426.
Buchanan v. James, Com’r, 134 Ga. 475, 68 S.E. 72; Tucker v. Hypotheek Min. & Mill. Co., 31 Idaho 466, 173 P. 749; Carscallen v. Lakeside Highway Dist., 44 Idaho 724, 260 P. 162; Murad v. New York, N. H. & H. R. Co., 34 R. I. 312, 83 A. 436; Deyo v. Hudson, 226 N.Y. 685, 123 N.E. 851. Contra: In re Stinger’s Estate, 61 Mont. 173, 182, 201 P. 693, 696.
First Christian Church v. Robb, 69 Or. 283, 138 P. 856.
Oxford v. State, 80 Okl. 103, 194 P. 101; State v. Kelly, 57 Mont. 123, 187 P. 637; Ashton v. Thompson, 28 Minn. 330, 336, 9 N.W. 876, 878.
Glendenning v. Slayton, 55 Mont. 586, 179 P. 817; Buettinger v. Hurley, 34 Kan. 585, 9 P. 197; In re Stinger’s Estate, 61 Mont. 173, 182, 201 P. 693, 696; Alden v. Superior Court, 186 Cal. 309, 199 P. 29, 32: “* * * motions for new trial do not lie from rulings of the courts on question# ©f fact collaterally raised, and which do not call for formal trial, and whore no provision is made for framing issues under the proceedings, such as proceedings supported by affidavits, applications to set apart exempt property, family allowances, and proceedings of similar character.” See, Mann v. Barkley, 21 Ind.App. 152, 51 N.E. 946; Linden v. Green, 81 Iowa 365, 46 N.W. 1108.
Continental Gin Co. v. Arnold, 66 Okl. 132, 138, 167 P. 613, 618, L.R.A. 1918B, 511.
Armstrong v. Gresham, 70 Colo. 502, 202 P. 706; Fincher v. Edwin M. Bosworth & Co., 76 Colo. 69, 230 P. 596.
Citizens’ Trust Co. v. Wheeling Can Co., 199 Ind. 311, 157 N.E. 441.
Vickers v. Robinson, 157 Ga. 731, 122 S.E. 405.
School Dist. No. 14 v. School Dist. No. 4, 64 Ark. 483, 43 S.W. 501; State v. Templeton, 21 N.D. 470, 130 N.W. 1009.
3 Bl.Comm. 453, 454: “When all issues are tried and settled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved; and a final decree is made: the performance of which is enforced (if necessary) by commitment of the person, or sequestration of the person’s estate. * * * And if, by this decree, either party thinks himself aggrieved, he may petition the chancellor for a rehearing; whether it was heard before his lordship, or any of the judges, sitting for him, or before the master of the rolls. For whoever may have heard the cause, it is the chancellor’s decree, and must be signed by him before it is enrolled; which is done of course, unless a rehearing be desired. Every petition for a rehearing must be signed by two counsel of character, usually such as have been concerned in the cause, certifying that they apprehend the cause is proper to be reheard. And upon the rehearing, all the evidence taken in the cause, whether read before or not,, is now admitted to be read; because it is the decree of the chancellor himself, who only now sits to hear reasons why it should not be enrolled and perfected; at which time all omissions of either evidence or argument may be supplied. But, after the decree is once signed and enrolled, it cannot be reheard or rectified but by bill of review, or by appeal to the house of lords.” Emerson v. Davies, 8 Fed.Cas. page 626, No.4,437; Belmont v. Brie R. Co., 52 Barb., N. Y., 637, 651; Reed v. Patterson, 44 N.J.Eq. 211, 14 A. 490, 494, 6 Am.St.Rep. 877: “A rehearing, strictly speaking, is simply a new hearing and a new consideration of the case by the court in which the suit was originally heard, and upon the pleadings and depositions already in the case.”
McLean v. Eaton Mfg. Co., 286 Mich. 285, 294, 282 N.W. 150, 154.
Yee v. State Board of Equalization, 16 Cal.App.2d 417, 418, 419, 60 P.2d 322, 323.
Lewis v. Martin, 210 Ala. 401, 411, 412, 98 So. 635, 644, 645; Kimple v. Conway, 69 Cal. 71, 72, 10 P. 189, 190; Wright v. Dorman, 155 Tenn. 189, 194, 195, 291 S.W. 1064, 1065.
McLean v. Eaton Mfg. Co., 286 Mich. 285 294, 282 N.W. 150, 154.
Teeter v. Southern Express Co., 172 N.C. 620, 90 S.E. 927.
Atchison, Topeka & Sanie Fe R. Co. v. United States, 284 U.S. 248, 259, 52 S.Ct. 146, 149, 76 L.Ed. 273.
Eraser v. Doing, 76 U.S.App.D.C. 111, 114, 130 F.2d 617, 620.
76 U.S.App.D.C. 111, 114, 116, 117, 130 F.2d 617, 620, 622, 623.
Fed.Rules Civ.Proe., Rule 41(b): “Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for laclo of jurisdiction or for improper venue, operates as an adjudication upon the merits’’ [Italics supplied]
Fed.Rules Civ.Proe. See also Address of Chief Justice Hughes, 21 A.B. A.J. 340, 341: “It is manifest that the goal we seek is a simplified practice which will strip procedure of unnecessary forms, technicalities and distinctions, and permit the advance of causes to the decision of their merits with a minimum of procedural encumbrances.”
Laverett v. Continental Briar Pipe Co., D.C.E.D.N.Y., 25 F.Supp. 80, 81.