Mower v. Warner

The opinion of the court was delivered by Williams, Ch. J.

The court are all agreed that the petition must be dismissed. It is unnecessary to express the different views of each member of the court on the several questions which have been made. Applications for a new trial are regulated either by the common law, or by statute. In the courts at Westmins'ter Hall *496 the motion therefor must be made within a limited number of days. In this state, by statute, the courts are empowered to grant new trials, agreeably to the usages of law, either on motion at the same term, or on petition at a subsequent term. But no new trial shall be granted, on petition, unless the citation be served on the adverse party within one year, if the reasons assigned be matter of law, and if the reasons be the discovery of new evidence, within two years, next after the rendition of the original judgment. Rev. St., c. 33, § 4, p. 210. The term, original judgment, we think, intends the judgment rendered by the county court. This is the judgment on which execution issues, unless stayed by order of court. This is the judgment to be affirmed, or reversed, by the supreme court, sitting as a court of errors only. For these reasons petitions for new trials have been sustained in the supreme court, while the case was still pending on exceptions.

The only question, about which any member of the court has had any doubt, is, whether the petitionee should not have pleaded the statute earlier, or be considered as having waived it. We do not discover any analogy to the statute of limitations. The statute prohibits the court from granting such trial, unless the citation is served within one year in the one case, and within two years in the other. The language of the statute is, no new trial shall be granted. The parties may insist on this objection at any time ; and the court would, of themselves, refuse the prayer of any petition, unless brought within the time fixed in the statute. The parties cannot waive it. The rights of the parties, and all interested directly or indirectly in the judgment, are vested and absolute at the expiration of the two years, and cannot be disturbed by any application for a new trial.

The judgment in this case was rendered at the November Term of the county court, in the year 1840, and the petition was not presented, nor the citation served, until February, 1843; it must, therefore, be dismissed, with costs.