Chapin v. Thompson

<p>Practice—Settlement of case of Ur trial of feigned issues —Appeal from order of settlement—Motion for new trial after verdict on feigned issues—Motion for new trial on ease and exceptions after judgment— Oode of Procedure, section 1003, qucere.</p> <p>Where, on action brought to foreclose a mortgage of real estate, issues of fact are settled and tried by a jury, and after verdict application is made to the court before whom the trial was had for judgment on “the pleadings, proofs and answers of the jury to the questions submitted,” and the trial judge “approved and adopted” the verdict, but made emendations and additions thereto and certified other findings, using in their support the evidence before the jury, to which findings exceptions are filed, it is error in the trial judge to strike from the case the evidence before the jury and the exceptions thereto.</p> <p>He should, in settling such a case, present, to be inserted, so much of the evidence as was requisite to show the grounds óf alleged error, and so much as related to his additions and emendations to the verdict.</p> <p>The trial judge could not properly limit the review by striking from the case the proceedings had before him, on which the appellant predicates error. It does not lie with him, in settling the case, to hold that the grounds of alleged error were untenable, or that they could not be considered by the appellate court.</p> <p>Such case being in equity the judge was not absolutely bound by the verdict. He could have disregarded it and have made findings in accordance with his own views of the case.</p> <p>Qumre, whether, under the last clause of section 1003 of Code of Civil Procedure, a party in an equity case is not bound by the verdict if he fails, before final judgment, to move to set it aside and for a new trial. The trial judge in an equity case, where the issues are tried before a jury, should hear the motion for new trial on the case made. If he shall decide that such motion cannot be made after judgment, his decision can be reviewed on apppeal. (Per Boarpman, J.)</p> <p>Order allowing amendments striking out evidence taken on the trial before the jury reversed, and case and exceptions sent back to the trial judge for resettlement.</p>