McCann v. Sloan

Bowie, C. J., delivered the opinion of this Court. The 5th Article of the Code, sec. 16,. enacts, that “in all1 eases where judgments shall he reversed or affirmed by the-Court of Appeals, and it shall appear to the Court that a. new trial ought to be had,, a writ of procedendo shall issue.” It is-obvious from, the language of this section, as well as the final character of decisions in this- Court, that the-propriety of a new trial must appear from the record before-the Court, at the time of the reversal-or affirmance of the ease under consideration. Any other construction would convert this Court into a. tribunal of original, instead of appellate jurisdiction. When this-case was under- consideration, the question of proeedendo was-presented to the minds of the Court, and the conclusion reached, that there was no ground for the writ.

The appellants now seek to change the decision of the Court, By presenting an affidavit of a witness to supply a defect of evidence in the record, on the ground that it is new evidence discovered since the trial of this- ease. This is virtually a motion, for a new trial,., fon reasons not appearing in-the record. It is the misfortune of the-plaintiff1 that he should? have-gone to trial without being prepared with full proof of hiselaim. If he relied upon the original entries in the plaintiff’s hooks, he must have shown the absence or