
    COBB a. CORNISH.
    
      Court of Appeals;
    
    
      March Term, 1858.
    Judgment at General Term upon Verdict at Circuit.
    The judge at the circuit has no power, upon the rendition of a verdict, to direct that the motion for judgment, upon a case to be made, be heard at the general term, in the first instance, and that judgment be suspended in the mean time.
    Upon trial at the circuit, both parties having taken exceptions, the jury found for the plaintiff, and the judge directed that the motion for judgment upon a ease to be made, be heard at general term; the general term gave judgment for the defendant, and the plaintiff appealed to the Court of Appeals. Held, that such a course amounted to a mistrial, and the judgment must be reversed for the irregularity, and a new trial granted, although on the merits the judgment was correct.
    There are only two cases in which the proceedings on a trial at circuit can be reviewed at general term, in the first instance. 1. When the judge deems the exceptions taken by the unsuccessful party to be of sufficient importance, he may direct the motion for a new trial to be first heard at general term. 2. Where the facts are uncontroverted, and the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at general term.
    
      It seems, that where the verdict is taken, subject to the opinion of the court, the only effect of rendering it in favor of one, rather than the other party, is that it devolves on him in whose favor it is rendered, the preparation of the case on which the general term is to render judgment.
    Appeal from a judgment of the general term, rendered upon a motion for judgment upon a case made.
    
      The action was tried at circuit, in the first district, and by a jury. The facts which raised the questions of practice decided, are stated in the opinion.
    
      Willard & Anderson, for the plaintiff, appellant.
    
      D. D. Lord, for the defendant, respondent.
   By the Court.

Harris, J. Great irregularities have occurred in the proceedings through which this cause has reached this court. The action was tried at the circuit, and by a jury. Upon the trial, evidence was offered by the plaintiff, which, being objected to by the counsel for the defendant, was excluded ; an exception was taken to the decision. The testimony being, closed, the court directed the jury to assess the value of the property in question. The defendant’s counsel requested the court to give certain instructions to the jury in relation to the effect of a part of the evidence upon the question of value. This the court refused to do, and the counsel for the defendant excepted. The jury having rendered a verdict for the plaintiff, the court ordered that the motion for judgment, upon a case to be made, be heard at a general term in the first instance, and that judgment be suspended in the mean time.

This order was clearly irregular. The judge at the circuit had no authority to make such an order. There are but two cases in which the proceedings upon a trial at the circuit can be reviewed at the general term in the first instance, before judgment. One is, where the unsuccessful party desires to move for a new trial upon exceptions taken by him upon the trial. In that case, the judge trying the cause may, if he deem the questions presented by the exceptions of sufficient importance, direct that the motion for a new trial upon the exceptions be heard in the first instance at a general term, and that judgment be suspended until such hearing. If the exceptions are sustained, the general term is authorized to grant a new trial; if not sustained, to render final judgment.

The other case is, where, upon the trial, an un controverted state of facts is presented involving only questions of law. In that case, the judge may, if he think fit, direct a verdict subject to the opinion of the court at the general term. In form, the verdict is rendered in favor of one party or the other, and it is quite immaterial which. The only effect of rendering the verdict in favor of a party is, that it devolves on him to prepare the case upon which the general term is to fender judgment.

The case before us was not in a situation to authorize the judge, at the circuit, to send it to the general term for final judgment. The plaintiff had taken an exception to the ruling of the court upon a question of evidence. If unsuccessful upon the trial, he had a right to have that question considered, upon an application for a new trial. But he was not unsuccessful. The verdict was in his favor. He had, therefore, no occasion to avail himself of his exception as a ground for a new trial. And yet the general term has rendered final judgment against him. This it was not authorized to do. The verdict being for the plaintiff, the case could only go to the general term upon the exception of the defendant, and all that the general term could regularly do, was to render judgment upon the verdict, if the exception was not well taken ; or, if well taken, to grant a new trial.

The case was not in a predicament to authorize the court to direct a verdict subject to the opinion of the court at a general term, for the reason that exceptions had been taken upon which the parties had a right to be heard upon a motion for a new trial; and upon a verdict subject to the opinion of the court, the question is never whether a new trial shall be granted, but which party, upon a conceded state of facts, shall have final judgment.

[After reviewing the evidence in the case, and expressing the opinion that upon the merits the judgment was correct, his honor concluded as follows:] But a majority of the court are of opinion that the irregularities, before noticed, are too Serious to be overlooked. They, in fact, amount to a mistrial. Upon this ground, the judgment must be reversed, and a new trial granted, with costs to abide the event.  