Robinson v. McDuffie

This court is authorized by statute, upon an application by petition, to grant, under certain circumstances, a. new trial in causes which have passed into judgment in the court of common pleas, or before justices of the peace. The effect of a new trial, in such a case, is a restoration of the cause to a course of law. It is again placed upon the docket of the court where the judgment was rendered, and is again tried in the same manner as it would be, had it never been before tried ; and the question is, whether an appeal to this court from a judgment of the court of common pleas, rendered upon a new trial thus granted, can be sustained ?

The decision of this question must depend upon the true intent and meaning of the statute of December 21, 1824, which enacts, “ that any party aggrieved at any judgment, not rendered on default of the court of common pleas in any real action, or in any personal action, wherein issue has been joined, &c. may appeal therefrom to the next superior court of judicature.” Is the judgment from which this appeal has been claimed, within the true intent and meaning of this clause in the statute ? It is certainly within the letter of the statute. What is there - then in the spirit, which can take it out of the letter, of the statute ? Nothing is perceived. Instances maybe supposed, in which the propriety of giving an appeal from such a judgment is very obvious. Thus if an action should be defaulted in the common pleas by accident, where the defendant intended to have a trial and a new trial should be granted in the cause by this court, and the case be tried and decided in the common pleas, it is evident, there might be as good reasons, why an appeal should be allowed in such case, as there would be in any ease that can be conceived. We are of opinion that there must be

Judgment on the, verdict in this case.