Buckner v. Conly - Case Law

Opinion of the Court, by

Czj. J. Boyle.

THIS was. an action of assumpsit. The cause was tried upon the general is_sue, and a verdict and' judgment were rendered for the defendant at the August term of the Roone, Circuit Court, 1 832. At the ensuing November term of the Court, a new trial was granted on the motion of the plaintiff, to which the defendant excepted, and on the second trial a verdict and judgment having been rendered for the plaintiff, the defendant has brought the case to this Court by writ of error.

(1) As, by the judgment for the defendant at the August term, the cause was at an end and the parties out of Court, it cannot be doubled that the Court, at the ensuing term, had no power to set aside the verdict and judgment and award a new trial, without having at the August term done some act by which the judgment was suspended and the cause continued, either expressly or by i in plication. ’

’ (2) But there appears to have been no such act done by the Court. Reasons for a,ne\v trial had been lodged with the papers in the cause on the last day of the August term, by the counsel of the. plaintiff, andón the paper containing these reasons, the clerk had endorsed 5’ filed August 10th,, 1822, in Court;” but there was no notice taken of this paper or of any intended motion in

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consequence of it, either on the minute book or order book, and the filing of the paper being the mere act of the party, could not, without some notice being taken, of it by the Court, in the minutes or records of its proceedings, operate to suspend the judgment and continue the cause, and of course, the Court having no power over the cause at the November term, it was erroneous to set aside the verdict and judgment and award a new trial.

Todd, for plaintiff; Rout, for defendant.

The jédgmpnt must be reversed with costs, and the cause be remanded, that the verdict on the second trial may be set aside, and the judgment on the first verdict remain in full force.