
    *Kline & Berry v. Wynne, Haynes & Co.
    A court is not authorized to grant a new trial for the cause .of error of law occurring at the trial (the cause provided by the 8th subdivision of section 297 of the code), unless the decision of the court upon the matter of law was excepted to by the party making the application, at the time the decision was made. If the exception, though in fact taken, be not reduced to writing during the term, it is to be regarded, in'law, as no exception; and the court has no power to dispense with this consequence by a continuance of the motion for a new trial.
    Error to the Superior Court of Cincinnati.
    The petition of the plaintiffs, filed in the Superior Court of Cin•cinnati, on the 24th of September, 1856, stated, that the plaintiffs, on the 16th of'September, 1856, were the owners of a certain stock of dry goods, clothing, and jewelry, of the value of nine thousand seven hundred and sixty-one dollars and thirty-five cents, contained in a certain frame house in the town of M ount Sterling, in the county ■of Brown, and State of Illinois ; that plaintiffs held the said personal property in their possession, and were justly entitled to the .same; that on the said 16th day of September, the defendants, with a knowledge of the plaintiffs’ right, caused the said stock of goods to be taken away from the possession of the plaintiffs and converted to the use of them, the defendants; whereby the plaintiffs have been deprived of the said property, and have been damaged by the acts of the defendants to the amount of the value of said property. And a judgment was asked for the said sum of $9,761.35 with interest from the 16th of September, 1856, and for costs.
    To the petition of the plaintiffs, the defendants filed an answer, •stating, “ that the said plaintiffs were not, on the 16th day of September, a. d. 1856, the owners of a certain stock of dry goods,, clothing, and jewelry, of the value of nine thousand seven hundred and sixty-one dollars and thirty-five cents, as alleged in their said petition, nor of any other stock of goods of any value-whatever ; ” and “further, that they did not, with a knowledge of plaintiffs1 right and in defiance of said right, cause the said stock of goods to be taken away from the plaintiffs and converted to-the use of said defendants, as is alleged in said petition.”
    At the April term, 1857, of the Superior Court of Cincinnati, the issue thus made, was submitted to a jury, and a verdict rendered for the defendants.
    At the same term, the plaintiffs filed a motion for a new trial, assigning as reasons : “ 1. The court misdirected the jury as to the law; 2. The verdict was against the evidence.” “And the cause-was to the next, to wit, the term of May, 1857, continued.”
    At the May term, 1857, the defendants filed an agreement to the effect that the judgment in this action should not be relied upon as a bar to another action; and “ upon the 30th day of May, of the term and year last aforesaid, this cause having been brought on for a hearing upon the verdict, motion for a new trial, and the-aforesaid agreement of the defendants, judgment as follows was-had and entered : The motion of the plaintiffs for a new trial coming on to be heard, the defendants in open court agree, that if the plaintiff, Benjamin Berry, or Kline & Berry, shall hereafter bring-an action for the recovery of the jewelry named in the proceedings-of the sherriff of Lasalle county, Illinois, as it appears in the testimony on file in this cause, that the defendants will not plead the-judgment in this case as a bar to the right of the said Berry, or Kline & Berry, to recover said jewelry, or its value, and that any suit or action hereafter to be brought for said jewelry, shall be tried upon its merits, and as if this action had not been brought or a judgment rendered therein; and thereupon the court overruled the said motion for a new trial. Therefore, it is considered" by the court that the said defendants go hence without day, and recover of the said ^plaintiffs their costs herein to be taxed. And now come the said plaintiffs and tender to the court their bill of exceptions herein, which is by the court signed and sealed, and ordered to be made part of the record.”
    The bill of exceptions thus allowed and signed at the May term, 1857, states:. “That on the trial of this cause, the plaintiffs, to-. Maintain the issue on their part, offered testimony tending to show that on the-day of September, A. d. 1856, the plaintiffs were the owners, and were in possession of the goods and chattels described in their petition, in the town of Mount Sterling, Illinois; and that, on said day, the sheriff of the county of Lasalle, in Illinois, by virtue of a writ of attachment, issued in a suit wherein said defendants were plaintiffs, and one Jacob Eice was defendant, seized said goods as the property of said Eice, and took the same from the possession of the plaintiffs, and that said chattels were of the value of nine thousand dollars, and rested. The defendants, to maintain the issue on their part, offered in evidence the testimony of Edward Samos, tending to contradict the said testimony of the plaintiffs as to the ownership and value of the said goods and chattels, and rested. And the testimony of both parties having closed, plaintiffs thereupon asked the court to charge the jury that the only issue made by the pleadings, as to the right of recovery in the case, was whether the ownership of said goods and chattels was in the plaintiffs at the time of said seizure, stated in the petition; which charge ■the court declined to give, and charged the jury that the following issue was made in the pleadings, viz : 1. Whether the defendants •caused such seizure to be made; 2. Whether, at the time of the seizure, they belonged to the plaintiffs. To which ruling and •charge the plaintiffs’ counsel excepted. The jury found a verdict for the defendants. The plaintiffs moved the court for a new trial, on the ground that the court had misdirected the jury, and that the verdict was against the law and the evidence; which motion the •court ^overruled, and gave judgment upon the verdict for the defendants; to which said ruling and judgment of the court, the plaintiffs, by their counsel, excepted.”
    Upon a petition in error, filed in the Superior Court of Cincinnati in general term, the judgment of the court at special term was ■affirmed.
    To reverse this judgment of affirmance, a petition in error was filed in this court.
    
      B. M. Corwine, for plaintiffs in error.
    
      Jolliffe & Gitchell, for defendants in error.
   Gholson, J.

The error assigned in this case is the refusal of the court to grant a new trial, upon the ground of a misdirection to the jury. The code provides, as one of the causes for which a verdict shall be vacated and a new trial granted, “ error of law occurring at the trial, and excepted to by the party making the application.” Sec. 297, subd. 8. Another cause provided-in the same-section is, “ That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law.” Subd. 6. If the error1 of law, occurring at the trial, be such as to make the verdict contrary to law, a new trial should be granted, though no exception was taken to the ruling of the court. It is evident, therefore, that, the cases intended to be reached by the eighth subdivision of section 297 are those in which a party, by taking an exception to a ruling of the court, is in a condition to attack the verdict upon a ground which does not involve an inquiry into the whole merits of the case. The errors of law, within the meaning of the eighth subdivision, embrace those occurring not only in the direction of the court to the jury, but in the admission or rejection of evidence. Instances very frequently occur in practice. Evidence is offered which is objected to as irrelevant; it is received, and an exception is taken. A charge is asked and refused, and an exception Mistaken. To make such exceptions available, so much of the evidence as is necessary to explain them, and no more, need be stated. Code, sec. 292. The court which, upon a proceeding in error, inquires into these exceptions, can only determine whether they should have been allowed or disallowed, and has nothing to do with the general merits of the case. Now, if the judge who presided at the trial becomes convinced that, in any such rulings to which an exception was taken, there was error in law, which in a court of eri'or would lead to a reversal of the judgment he might render on the verdict, it is both proper and convenient that he should be allowed to grant a new trial, and thus save the expense and delay of the application to a court of error. But, if no exception betaken, or an exception be not taken in such a manner as to be available in a court of error, the pxdnciple does not apply, and a new trial ought not to be granted, unless the justice of the case should so require. It would so require if the verdict was contrary to law; but every misdirection of the court, or error of law occurring at the trial, does not make the verdict contrary to law.

In New York, from the code of which state ours was to a considerable extent borrowed, the distinction to which we have referred, is stated, as between a motion for a new trial on a case and on a bill of exceptions. Under the English practice, a motion for a new trial could not be made upon the bill of exceptions. The question upon the motion for a new trial always was, whether substantial justice had' been done. And we believe the practice was to require a party who relied upon a bill of exceptions, to go to the court of evror, or if he preferred being heard upon a motion for a new trial upon the ground of misdirection, to waive his bill of exceptions. It was not deemed proper, as a general rule, to allow the matter to be .twice heard.

The distinction between a motion for a new trial, upon a bill of exceptions or for error of law occurring at the *trial and on a case, or upon a full statement of all that occurred at the trial, is quite manifest. The distinction is between the demand of another trial ex debito justitice, on the ground of error appearing on the record, and the asking another trial to be granted in the discretion of the court, because injustice has been suffered. In the one case only the alleged matter of error is examined, and if found as alleged a venire de novo is awarded; in the other, all the facts and circumstances are considered, and a now trial is granted, as the discretion of the court may determine. Bank of Ireland v. Evans’ Trustees, 5 Ho. L. Cas. 389-405; Lord Trimlestown v. Kemmis, 9 Cl. & Fin. 749-770; Zeller v. Eckert, 4 How. 289, 297; Kinney v. Beverly, 2 Hen. & Munf. 313-327.

A party who claims a new trial upon points of law, irrespective of the justice and merits of the case, has no right to complain, if he is required, not only to take his exception at the proper time, but to procure the evidence of it required by law, and within the time which the law requires.

The code defines an exception to be “ an objection taken to a decision of the court upon a matter of law.” Sec. 290. “The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exceptton to writing, but hot beyond the term.” Sec. 291. “As to the propriety, nay, as to the absolute necessity of this rule, there can be no controversy. The whole matter should be closed, while all the facts and circumstances are fresh in the recollection of the counsel and the court. To postpone it to a subsequent term, would or might be a fruitful cause of error and mistake. But, even if there were doubt as to the policy of the rule, there can be no doubt as to the positive provisions of the law.” Hicks v. Person, 19 Ohio, 426, 437. And yet, if upon a motion for a new trial, for the cause of error of law occurring at the trial, a continuance of that motion to a subsequent *term, will enable the court to reduce the exception to writing at such subsequent term, with precisely the same effect as if it had been done at the trial term, it is evident that the rule would have no positive or binding obligation, but might, in every case, be dispensed with at the pleasure, or in the discretion, of the court. We are satisfied that such was not the intention of the legislature. The court is not authorized to grant a new trial, for the causo of error of law occurring at the trial, unless excepted to by the party making the application, and if the exception be not reduced to writing during the term, in law there was no exception. The court has no power to dispense with this consequence, by a continuance of the motion for a new trial.

It may be said that the views we have stated are in conflict with the opinion of the court, in the case of Coleman v. Edwards, 5 Ohio St. 51. It. might suffice to say, that the code which now regulates our practico, did not apply to that case. And, certainly, since the code, it can not be claimed, as appears to have been held in that case, that a party is entitled to a new trial for a misdirection to the jury, although he took no exception. The only point which the code leaves in any doubt, is the one which has been considered, the effect of a continuance of the. motion for a new trial to dispense with the necessity of reducing the exception to writing during the term at which it is taken. But we do not desire to be understood as admitting that the code really made any substantial difference in the former law or practice as to granting motions for new trials. And we suppose that the act of March 12, 1845, in view of which the cases before cited, of Hicks v. Person, and Coleman v. Edwards, were decided, was not intended to affect the rules and practice of the inferior courts in granting or refusing new trials, but to aliow their action in such cases to be reviewed upon a bill of exceptions and writ of error. When the only ground for a new trial is a misdirection to the jury, not excepted to, and * therefore not available upon a proceeding in error, neither the court acting in the .first instance upon the motion, nor the court reviewing that action, can be bound to grant a new trial as a matter of right, when it is apparent that, notwithstanding an error in the direction of the court, real and substantial justice has been done. As before observed, a party who sits by during the charge •of the court to the jury, and hears without objection an erroneous instruction, perhaps inadvertently given, and which upon a suggestion then made, would have been corrected, is not in a position to claim more than real and substantial justice, in view of all the evidence in the case and the rules of law applicable to that evidence. That this is the correct rule of practice in reference to new trials, is, we think, sustained by the authorities. Moore v. Tuckwell, 1 M. G. & S. 607; Hughes v. Hughes, 15 M. & W. 701; Brazier v. Clapp, 5 Mass. 1-10; Doe ex dem. Teynham v. Tyler, 6 Bingh. 561; McLanahan v. Universal Ins. Co., 1 Pet. 170-183; Gordon v. Graham, 8 Cl. & Fin. 107-119; Househill Coal and Iron Co. v. Neilson, 9 Cl. & Fin. 788.

The foregoing views are decisive of the present case. The only .ground for a now trial is an alleged misdirection to the jury. "We are not authorized to decide whether there was error in the direction the judge gave to the jury, because we have no evidence, which we can regard, that an exception was taken, and unless the error •of law was excepted to, that ground for a now trial can not be sustained. The judgment must therefore be affirmed.

Brinkerhoee, C. J.-, and Scott and Peck, JJ., concurred.

Sutliee, J.,

dissenting. I am unable to concur in the opinion •expressed in this case, that the record does not show an error in overruling the motion of the plaintiffs for a new trial, and rendering judgment upon the verdict.

*We all agree that there was error in the refusal of the court ■to instruct the jury as requested, and in the instruction as given by the court to the jury, and for which the plaintiffs, by motion duly filed, asked for a new trial, provided these errors of the court are legally shown upon the record.

My brethren hold that the errors so occurring at the time of the ■charge refused and given to the jury, at the April term, can not be taken notice of by this court, for the reason that they only appear by the bill of exceptions taken at the next term, upon the overruling of the motion for a new trial; and that in order to have entitled the plaintiffs to the benefit of those errors in the charge to the jury, a bill of exceptions should have been taken at the time.

I hold that such is not the law, but that the opinion expressed by this court in the case of Coleman v. Edwards & Jackson, 5 Ohio St. 51, is a correct exposition of the law applicable to the case, and! ought to be adhered to.

The statute under which that case was decided, provided as follows : Sec. 3. In all cases pending in the court of common pleas, or in the Superior Court of Cincinnati, either party shall have the right to except to the opinion of the court, on a motion to direct a nonsuit, to arrest the testimony from the jury, and also in all cases of motion for a new trial by reason of any supposed misdirection to the jury, or by reason that the verdict may be supposed to be-against law or evidence, so that such case may be removed by writ of error; and where a party to a suit in either of the aforesaid courts alleges an exception to any opinion, or order, or judgment of such court, it shall be the duty of such judges of such court concurring in such opinion or order, if required by such party, during the progress of the case, to sign and seal a bill containing such exception or exceptions, before the case proceeds; or, if the party consent, the signing and sealing *of such bill of exceptions may be suspended until the trial is closed; but said bill of exceptions, shall be signed and sealed during the term; and such bill of exceptions, when signed and sealed, shall, if the party desire it, be-made a part of the record in such suit.” 2 Curwen, 1140.

Under this section, it was held, in the ease of Coleman v. Edwards. & Jackson, that where a motion for a new trial was made on the ground of alleged misdirection of the court in its charge to the jury, and continued to a subsequent term of the court, and then overruled, the party making the motion has the right to his bill of exceptions to the order of the court overruling the motion, although no exceptions were taken to the charge of the court to the jury at time of the trial. The motion for the new trial was in that case filed upon the return of the verdict in that case, as in this, and continued until the nfext term for hearing. At the ensuing term the motion was overruled, and a bill of exceptions was thereupon allowed, reciting the facts that, upon certain evidence particularly stated, the court was requested to give certain instructions to the jury, which was refused, and which the party, as alleged error of law, had stated in his motion as cause for a new trial; and that the court had overruled the motion for a new trial, holding the matter insufficient cause for a new trial. And on the bill of exceptions so taken to the overruling of the motion, this court was unanimous in holding the bill of exceptions sufficient, an d reversed the order of' the court below in overruling the motion for a new trial.

■In that case, it will be observed, the party did not even except to-the refusal of the court to charge the jury as requested, on the trial, or at that term. In this case the bill of exceptions not only shows, as in that case, the refusal of the court to give the proper instruction to the jury when requested, but also that the party at the time • excepted thereto.

*Now, either the rule laid down by this court in that case was wrong, or the rule has been changed by the code, or the rule-laid down in this case is wrong.

Has the law been changed by the provisions of the code ?

The provisions of the code in relation to the right of exception-, to overruling a motion for a new trial, are as follows:

Sec. 290. “An exception Í3 an objection taken to a decision of the court upon a matter of law.

Sec. 291. “ The party objecting to the decision must exeept at. the time the decision is made, and time may be given to reduce the-exception to writing, but not beyond the term.

Sec. 292. “No particular form of exception is required. The-exception must be stated, with so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible.”

Sec. 294. . . . The party excepting must reduce his exception to writing, and present it to the court for its allowance. If true, it shall be the duty of a majority of the judges composing-the court, to allow and sign it, whereupon it shall be filed with the pleadings as part of the record, but not spread at large on the-journal. If the writing is not true, the court shall correct it, or-suggest the correction to be made, and it shall then be signed as aforesaid.”

It is provided in article 6 of the code, as follows :

Sec. 297. . . . “ The former verdict, report or decision, shall be vacated, and a' new trial granted, on .the application of the party aggrieved, for any of the following causes affecting materially the-substantial rights of such party :

“ 1. Irregularity in the proceedings of the court,” etc.

*“2. Misconduct of the j ury or prevailing party. . . .

“ 8. Error of law occurring at the trial and excepted to by the-party making the application.”

Sec. 299. The application must be by motion upon written grounds, filed at the time of the making the motion.”

Now, upon comparison of the provisions of the code with the ■statute of March 12, 1815, it is evident that the provisions of the -code are even more strong than those of the statute giving the right to a new trial on motion, and the right of excepting to the ■order of the court in overruling such motion.

Has the party complied with the provisions of the code, authorizing him to the benefit of the causes for a new trial, set forth in his motion ? The cause set forth in the motion is, “ error of law occurring at the trial and excepted to by the party,” to wit, that the court misdirected the jury as to the law.” The code provides, that the objection to the instruction or decision of the court may be made at any time during the term. The record shows us, that on the coming in of the verdict, at the time of the trial, the party made his written objection to the charge of the court, as expressed by the motion to set aside the verdict for such error of law, .and then filed in court, and the motion is made part of the record-The bill of exceptions taken to the overruling of the motion, was taken at the term and at the time the motion was overruled. The ■code provides that such bill of exceptions, if not true, shall be corrected by the court, and that the court shall allow and sign it, “ whereupon it shall be filed with the pleadings as part of the record.” And this bill of exceptions not only recites the erroneous charge given by the court, but the fact that the party excepted at the time to the charge. It therefore stands thus : the bill of exceptions taken at the time of overruling the motion shows both the “ error of law occurring at the trial,” and the fact that the party at the Hime excepted to it; and the bill of exceptions being part of the record, and like other parts of the record, importing absolute verity, good cause for the motion is shown by the record. It seems to me, therefore, evident that the motion for a new trial ■ought to have been allowed, and that the court erred in overruling ■the motion and rendering judgment in favor of the defendants.

But it is said that no hill of exceptions was taken at the time or at the term of the erroneous charge of the court to the jury, so sot forth as a cause for a new trial.'

It ought to be a sufficient answer to this objection, that the code ■does not require that a bill of exceptions should be taken in order to •entitle the party to the benefit of a motion for a new trial; but only that such■ charge should be “excepted to by the party;” and the record shows that this was done at the term and at the time of the-charge.

But the reason of the case, as well as the provisions of the code,, are opposed to the objection.

The provisions of the code, it is true, give a party the right, if he sees fit, to take a bill of exceptions to any decision of the court, ■ which he regards as error of law, occurring during the trial, and to stand upon that bill of exceptions, without asking for a new trial, if he sees fit so to do. But the party has also the right to roly upon a motion for a new trial predicated upon such supposed error objected to by him. And it is but reasonable to suppose, that counsel having full confidence in the willingness of the court to correct its own errors, might prefer the summary remedy of a 'motion for a new trial, to the more protracted one of carrying the case to a revising court. And such seems to have been the course taken by counsel in this case.

Nor is there any reason apparent, why, on hearing of the motion, a party should be precluded from proving any cause for the motion set forth therein, and constituting a legal cause for a new trial.

Suppose the motion in this case to have been for the *eause, that the party submitted to the court the legal proposition in writing, which he was entitled to have given in charge to the jury, and requested to have given, and that the court refused to give the same, but underneath wrote a charge directly the converse and a denial of the proposition proposed, and read the same to the jury, to all which the party excepted, and that on the return of the verdict, the party made his motion for a new trial, attaching thereto • the written proposition and charge, and the clerk had filed the same in the case at the time. If the court had at this point continued the case and adjourned the «ourt, can it be doubted that the - fact of the submission and refusal of the proposition, and the fact of the reading to the jury the counter proposition, might be proved upon the hearing of the motion at a subsequent term by the court, even though hold by another judge ? Certainly there could be no ■ objection to such proof which would not in such a case apply equally to any other cause for a new trial, occurring at the trial of the. case. If the cause set forth in the motion for a new trial so continued, had been alleged misconduct of the jury, or prevailing party upon-the trial, and the motion were heard by another member of tho- ■ court, it can not be doubted that it would be competent and neces■•sary for the party to prove such alleged misconduct upon the trial, .and. this although the misconduct might have occurred in the presence of the other judge who tried the case.

The difference in our views of this case, I apprehend, arises from my regarding the bill of exceptions taken at the time of overruling the motion as the only bill of exceptions, and the order overruling the motion and the judgment thereupon entered, as the final order .■and judgment, which are alone brought before us for revision. I regard the error in the charge of the court, and the misconduct on the trial, and all other causes enumerated for a new trial, only as facts, which, if alleged as cause for new trial, ought to be proved, or .shown to have existed, by the bill of exceptions taken to the overruling the motion. And if they *are shown by the bill of exceptions (which imports absolute verity), inasmuch as it is provided by the code, that for such cause the verdict shall be vacated and a ■ new trial granted, the court erred in refusing a new trial.

I regard the decision of this case as not only opposed to the ex- ■ press provisions of the code referred to, but as one subjecting the ■ courts and lawyers to much inconvenience. Under the change of the rule by this decision, the courts must be subject to the delay • of business, and lawyers to the labor of drawing up bills of exception upon every supposed error in the holding of the court, for which it is proposed, if necessary, to ask that the verdict be ■vacated. And besides this delay and labor, these bills of exception, becoming part of the record, must greatly increase the labor • of the clerks and the expense of suitors. I am certain there is no ■ express provision of the code requiring any such change in our practice; and I am equally confident such change is not implied, nor is it justified by any reasons, or regard to public convenience, ;that I am able to perceive or appreciate.  