
    Common Pleas Court of Montgomery County.
    David Redman v. Price Bros. Co.
    Decided _
    
      Marshall & Harlan, for plaintiff.
    
      Murphy, Elliff, Leon & Murphy, and Mason Douglas, for defendant.
   Snediker, J.

This case was instituted for the recovery of damages alleged to have been sustained by the plaintiff through the negligence of the defendant. The case came on for trial and after a presentation of all the evidence to a jury, the arguments of counsel and the charge of the court, upon consideration a verdict was returned on the issues joined in favor of the defendant.

Within the time required by law the plaintiff filed a motion for a new trial in which he specified eleven grounds. As we understand this motion was presented to Judge McCray the trial judge. Unfortunately, before it was determined by him, his death occurred. It has reached us by the process of transferring his unfinished business to the judge deciding this motion.

It is now contended by counsel for the plaintiff and by him made a part of the motion that because of the death of the trial judge he is entitled as a matter of course to a new trial. On the other hand, counsel for the defendant insist that the case having been fully tried, although the judge presiding passed away in the interim, the motion may be considered by any judge of this court to whom the question of whether or not there shall be a new trial is submitted.

In searching the provisions of the code we are unable to find any section which covers the situation presented by the death of a 'trial judge. In the absence thereof it is permissible for the judge to whom this motion is now submitted to adopt such common law principles for the purposes of this decision as are adapted to this situation, for unless there be direct legislation on this question the General Assembly will not be presumed to have intended to abrogate such rules of the common law, and the court is bound to see that there is a regular course of administration of law through the courts of justice. It can be said that the court is using discretionary power. In passing upon a motion for a new trial the duties of the judge are similar, if not entirely like, those of the jury who heard the case.

The power of granting a new trial is the exercise of judicial authority in civil cases, and in its incipiency was employed where the jury found against that which the judge trying the case held to be the law, or where the jury found a general verdict and the court conceived that on account of the difficulties of law there ought to have been a special one. In the course of legislation in this state, that authority was embodied in Sections 11575, 11576 et seq., of the General Code. In Section 11576 eight different causes are mentioned- for any one of. which, materially affecting his substantial rights, a defeated party may have a new trial. Some of these are -broad enough in their scope to involve the question of the credibility of the witnesses, the determination of which would include an observation of their manner of testifying, of their demeanor on the stand and of their apparent interest in the case on trial. In the motion before us the seventh ground is of that character.

Is it our right under these circumstances and in this state of the law, against the protest of the moving party, to hear and determine this motion for a new trial?

In arriving at our conclusions with respect to this question we have examined a number of authorities and find the preponderance thereof to be with the contention of the plaintiff. The general rule is stated as follows:

‘Under the common law practice and where the right has not been regulated by statute, the proper disposition for a succeeding judge to make of a case on the docket of his court pending upon a motion for a new trial is to direct a new trial as a matter of course, except, where no examination or weighing of evidence or the credibility of witnesses is involved.”

Speaking as to the propriety or possibility of another taking the place of the trial court, Chief Justice Winslow, in the case of B, plaintiff in error, v. State, defendant in error, 166 Wis., p. 533, says:

“In the strict and accurate sense no one can share the responsibility of the trial judge on a motion for a new trial. The defendant has the right to have ‘the solemn opinion of the judge who tried the cause, after a careful hearing of all that may be alleged against its justice, that it (the verdict) ought to stand.’ Ohms v. State, 49 Wis., 415; Lonergan v. State, 111 Wis., 453. The conscience of the trial judge must be satisfied with the verdict. In each case it is an individual problem presented to but one conscience, for every conscience must meet its individual problems alone.”

In the case of Linker, appellee, v. Union Pacific Railroad Co., appellant, 87 Kansas, p. 186, the court held, where one of the grounds of the motion for a new trial was that the verdict was not sustained by the evidence, that because the judge who tried the case had resigned and the motion came on for hearing before his successor, it was error not to grant a new trial. In the body of the opinion the court say:

“Where the judge who tried the cause resigns and a motion for a new trial based upon the ground that the verdict is not sustained by the evidence comes up for hearing before his successor, the approved practice has been for the motion to be sustained as a matter of course, for the reason that the judge, not having heard the evidence, can not intelligently determine the question as to its sufficiency. The motion must be sustained unless the verdict of the jury meets the independent approval of the trial judge. The precise question was passed upon in Bass v. Swingley, 42 Kan., 729, where it was held to be the duty of the new judge to sustain the motion. The same ruling was made in Insurance Co. v. Neff, 43 Kan., 457.”

In the case of Ohms v. State, cited in the 166 Wisconsin, Judge Taylor says:

“When a motion for a new trial is made upon the minutes of the court, it is imperative that such motion should be heard by the judge who tried the cause, unless the party who- makes the motion consents that it may be heard by some other judge. It would seem to be impossible for a judge to intelligently determine a motion for a new trial upon the minutes of the court unless he presided at the trial. Without being present at the trial, unless a bill of exceptions or case were first settled or agreed upon, containing a full history of all that took place, he could know nothing of the matters which he ought to know in order to give an opinion as to whether a new trial ought to be granted; and even upon a case or bill of exceptions made and settled, he would not be in a position to give a very satisfactory opinion upon the motion. In that case he would be very much in the position in which this court finds itself when called upon, under our'statute relating to appeals, to review the opinion of the trial judge in granting or refusing a new trial; and this court has repeatedly held that it must be a case of very gross error which will induce this court to interfere with the discretion of the trial judge in granting or refusing a new trial upon the evidence, or for other matters occurring during the trial.
_ “The reason for this- rule is so well stated by Chief Justice Dixon, in Lewellen v. Williams, 14 Wis., 687-693, cited by me in the opinion in Jones v. Railway Co. (ante, p. 352), that I repeat it here as a better argument for the rule than I should be able to make: ‘The exercise of a sound discretion in such matters often depends upon a variety of facts and circumstances which cannot be described on paper and brought before the appellate tribunal with their original force and influence, and which no one but the judge before whom the case was tried can fully and properly estimate. Many of these facts and circumstances are absolutely incapable of such delineation; and to say that the discretion depending upon them shall be transferred to another court, there to be exercised without the means of forming a correct judgment, seems impossible.’ This argument is equally forcible when applied to the case of hearing a motion for a new trial upon the minutes of the court, when such motion is made before a judge who did not preside at the trial.”

In the case of Bass v. Swingley, 42 Kansas, at p. 735, we find in the opinion of the court the following language:

“The great .weight of authority seems to be that where the trial of the case has been had before one judge, and the motion for the new trial is presented and submitted to another judge, who did not preside at the trial, and one of the grounds for the new trial is that the verdict is not sustained by sufficient evidence, the new trial should be granted as a matter of course.”

In the case of St. Francis Mill Co. et al. v. Sugg et al., 142 Mo., p. 364, presiding Judge Barclay said:

“If on account of a change of judges, a party is deprived of the opportunity to have the judge who tried the cause review the finding therein upon a motion for new trial (invoking the exercise of his discretion), the law of Missouri declares that a new trial should be granted in order to avoid the risk of a miscarriage of justice. The reasons for that ruling have been fully given in former opinions of the Supreme Court,” citing 25 Mo., 597; 56 Mo., 180.

In the case of the 25 Missouri, a successor judge had refused to disturb a verdict on the ground that he had not the opportunity which the jury had of deciding upon the credibility of the witnesses by the manner in which the evidence was given and overruled the motion for a-new trial. The Supreme Court held:

“Without expressing any opinion whatever on the evidence or the merits of the motion, we think that, under the circumstances, the court ought to have sustained the motion and ordered a new trial. A party to a suit has the same right- to have his motion for a new trial heard and duly considered as he has to institute or defend an action. An acknowledged ground for granting new trials is, that a verdict is against the weight of evidence; and if, in this case, the court was embarrassed by the circumstances, and could not pass on the merits of the motion, it ought to have directed a new trial. It is better to allow a new trial, where the court for any cause cannot consider the merits of an application for that purpose, than to refuse it; for by denying the motion, without giving a party the benefit of being heard or of having his reasons considered, irreparable injury may be done, while on the other hand the prevailing party in the verdict will only suffer by delay, and generally will secure another verdict if he is entitled to it.”

The foregoing decisions are only some of the authorities which we have examined which take the view here expressed. Counsel for the defendant have submitted some half dozen or more decisions in which the courts have extended the privilege to a successor or surviving judge to pass upon the motion for a new trial. We do not undertake to distinguish these. The great weight of authority is the other way. The state of this case and the law of this state make the application of the authorities from which we have quoted available for the purposes of this opinion. That the law of Ohio provides upon the death of a judge that another judicial incumbent of the same district may act upon and dispose of a bill of exceptions, in the time and manner required by the trial judge, does not impose any duty on the court or extend them any privilege as to the motion we now have before us. The consideration of such a motion involves more than a record discloses and justifies the opinion of some of the distinguished judges from whom we have quoted.

In view of the foregoing and in the exercise of that discretion which we regard ourselves as entitled to use the motion for a new trial is sustained as a matter of course.  