Chiswell v. Nichols

This is the second time this case has been before us on the appeal of the present appellant. In 137 Md. 291 , the judgment was reversed and a new trial awarded. It was again tried and the plaintiff (appellant) recovered a verdict for three hundred dollars. Not being satisfied with that verdict, she has appealed and the only question in the record is one presenting a ruling from the lower court on the prayers.

The plaintiff offered seven prayers, four of which were granted, and the other three rejected. The defendant also offered seven, all of which were granted except the sixth and seventh, which were rejected. As about twelve pages of the appellant's brief is devoted to what is really an attempt to have this Court grant a new trial by reason of the alleged failure of the jury to properly compensate the plaintiff for the injury sustained by her, it will be well to dispose of that before taking up the rulings on the prayers. The general rule is thus stated in 2 Poe, Pl.

Pr . sec 349: "Motions for a new trial are addressed to the sound discretion of the court, and from its action in granting or refusing them, whether absolutely or on terms, no appeal will lie," and many cases are cited in the note. A number of efforts have been made from time to time to have *Page 444 this Court entertain such appeals, sometimes by seeking to have us regard the applications as something other than a mere motion for a new trial, but when the appeal was from the action of the lower court on such a motion, or what was equivalent to one, this Court has consistently refused to entertain it. The rule has been so often announced that it may be regarded as useless to refer to any decisions except those found in 2 Poe, supra, but what has been said in a few of them will not be out of place, as reflecting upon the position this Court has taken in reference to appeals to it from the rulings of the lower court on such motions. In Balto.

O.R.R. Co . v. Brydon, 65 Md. 198 , a verdict for $75,000 was involved. The Court said: "By the immemorial practice of the Maryland courts, the jury has an unqualified right to form its judgment on the facts which the court determines to be legally sufficient, without any interference or control on the part of the judge. After the verdict is rendered, the judge who tried the case may set it aside and grant a new trial in his discretion, if justice so requires it. But the functions of this Court are much more limited.

We have no right to decide on the correctness or incorrectness of the verdict of a jury . We are restricted entirely to the questions of law decided by the court below." (Italics ours.) In a concurring opinion on a motion for a re-argument, CHIEF JUDGE ALVEY said, on p. 230 of 65 Md.: "The law has provided a means of redress against erroneous or unjust verdicts, by motion for new trial, addressed to the court that heard the case; but with that, this Court has nothing to do ." (Italics ours.) In Stern v. Bennington, 100 Md. 344 , CHIEF JUDGE McSHERRY asked the question, "Has this Court jurisdiction to review that part of the order appealed against which refused to strike out and set aside the verdict of the jury?" He answered that by saying, "The motion asking the lower court to vacate the verdict was a motion for a new trial, and from a ruling on that motion no appeal will lie to *Page 445 this Court. * * * This is so fully settled as the law of Maryland that we would not be justified in further discussing it." The case of Waters v. Waters, 26 Md. 53 , quoted at some length by the appellant, is entirely in harmony with the other decisions of this Court. That was an appeal from an order of the trial court granting a motion for a new trial of issues from the orphans' court. Our predecessors said: "The granting of a motion for a new trial cannot be demanded as matter or right, for whatever objections may be made to a verdict, it is clear, upon authority, that the objections relied on must be aided by some inference of a failure of justice of which the court, before whom the case was tried, alone can judge, to justify the exercise of its discretionary power over the verdict .

The power to set aside a verdict upon such a motion rests upon considerations altogether behind mere legal objections to the verdict; and it is upon this ground that the motion goes to the discretion of the court, and that the action upon it cannot be assigned for error upon appeal or writ of error ." (Italics ours.) The other two Maryland cases cited by appellant, Whitcomb v. Mason, 102 Md. 275 , and Produce Exchange v. New York, P. and N.R.R., 130 Md. 113 , are also in line with the other decisions in this State, and in the latter the case of Dutton v. State, 123 Md. 373 , where the prisoner was under sentence of death, was cited. As is usual in cases in which counsel undertake to have a review of the action of the lower court in passing on motions for new trial, it is suggested that it is in reality something else. It is said in their brief: "We come now to a very interesting and novel point. For the first time, this Court is asked, not so much to review the action of the lower court in refusing to grant a new trial, but to say whether it will sustain a verdict (or rather the form of a verdict) which, in view of the record, is ipso facto illegal," and then speaks of the "inherent invalidity of the verdict." But this Court has no right to pass upon questions brought before it unless it be done in some proper manner.

The record does not disclose *Page 446 anything novel in reference to the motion for a new trial. It simply shows "1921, Jany. 22nd, Motion of Plaintiff for new trial filed," and "1921, Jany. 27th, Motion for new trial heard before court (ASSOCIATE JUDGES GLENN H. WORTHINGTON and EDWARD C. PETER), and same day motion for new trial overruled." It does not even show the grounds for the motion, as they nowhere appear in the record. It is true, the brief does state that embodied in the motion there were certain things mentioned, but there is nothing whatever in the record to justify that statement, and if we could review the action of the lower court on such a ruling we could not properly be asked to go outside of the record. When the appeal was entered in this case it did not bring up for review the ruling of the court on the motion for a new trial, for, as we have seen, such ruling is not ordinarily reviewable, even if it be conceded that it is possible in any case to review it on the ground that there was an abuse of discretion by the lower court, which we must not be understood as holding.

There would certainly have to be something of record to show such abuse, and as the record before us does not even show upon what that motion was based, it