People ex rel. Allen v. Hill

Cope, J. delivered the opinion of the Court Baldwin, J. concurring.

The notice of the motion for a new trial in this case was not given in time, and the proceedings based upon such notice must, therefore, be disregarded. The trial terminated with the rendition of the verdict, and the notice should have been given within two days thereafter. It is urged that as the verdict was special, it was necessary to invoke the action of the Court before a judgment could be entered upon it, and that, therefore, the trial itself did not in contemplation of law terminate until the judgment was rendered. We cannot assent to this view. The facts were settled by the verdict, and it only remained for the Court to pronounce the conclusion of the law upon the facts found. If the Court erred in this respect, the error is a proper subject of review, and a motion for a new trial was unnecessary. If the verdict was not satisfactory, the right to correct it did not depend upon the judgment, and the steps for that purpose should have been taken within the time limited by the statute. The better practice in such cases would be to settle aE questions of this character in advance of the final action of the Court.

It is argued by counsel, that inasmuch as the party aggrieved by a verdict is alone entitled to object to it, the right to do so must be regarded as resulting from the judgment, and depending for its exercise upon the ultimate action of the Court. The error of this argument is obvious. It makes the exercise of this right subservient to the opinion of the Court upon a matter of strict law in no way connected with any question to which it relates. The Court acts upon the verdict as it is, [118]and not as it should be, and if the right of a party to take the necessary steps for its correction depends upon such action, even an erroneous judgment is conclusive of this right. The successful party can never go behind it for the purpose of calling in question the action of the jury.

In Peabody v. Phelps, (9 Cal. 213) though the precise question in this case was not involved, a similar opinion was expressed in regard to it. “ Upon facts found,” said the Court, “ whether by report of the referee or special verdict of a jury, the direct action of the Court must be invoked before judgment can be entered. Though the trial in such cases has ended, judgment does not follow immediately as a matter of course; and the time within which the notice of motion to set aside the report or verdict must be given, should be the same in the two cases, and date from the filing of the report or the rendition of the verdict.”