Argument for the defendant in error. After the argument, this court refused to dismiss the case on the motion. It then said:* "It is insisted, on this point, that the judgment is merely an affirmance of the order of the District Court overruling the motion for new trial. If this be so, the judgment itself is, in substance and effect, nothing more; and it is settled that this court will not review such an order. The granting or refusing of new trials is a matter of discretion, with the exercise of which, by the court below, this court will not interfere. The circumstance that the discretion was exercised under a peculiar statute by an appellate court, and on appeal, cannot withdraw the case from the operation of the principles which control this court. "But the majority of the court does not feel at liberty to disregard the plain import of the terms of the judgment rendered by the Supreme Court of the Territory. It does not purport to be an order or judgment affirming an order overruling a motion for new trial, but a judgment affirming the judgment or decree of the District Court, and the only judgment or decree, which we find in the record, is the judgment for the defendants in the action of ejectment. "If this view be correct, the judgment of the Supreme Court is one to review which a writ of error may be prosecuted." The case was accordingly retained for a hearing in regular course. It was now reached, and was argued fully on its merits; the true nature of this judgment or decree of affirmance and of every part of the matter of the jurisdiction being, however, again very fully discussed on a minute examination of all parts of the record, with a presentation of the Code of Nevada. Messrs. W. M. Stewart, and J. S. Black, for the defendant in error, after arguing the case on merits, contended that the discussion of these ought never to arise in this court; that it was manifest from the statement of the case that the counsel of the plaintiff in error expected this court to hear them on the motion for a new trial, and to reverse the de * Sparrow v. Strong, 3 Wallace, 105. Argument for the defendant in error. cision of the Territorial court on that point by granting, here, the new trial which, there, had been refused. The language of the decree of affirmance of itself might be doubtful if read by the distant lights of ancient technical formularies; but it was not doubtful if read by the lights which surrounded it, and which as modern ones are the true ones by which to read it. The clerk has written, the “judgment and decree" of the District Court affirmed. But what does he mean by "decree?" No one will pretend that there is any decree in the technical sense, in this case; that, by any proceeding here taken this court has acquired jurisdiction of a decree in chancery; yet this pretence would be no more unreasonable than the assertion that this court may entertain jurisdiction of a judgment which was not before the Territorial Supreme Court. The whole record shows that the decision of the Territorial Supreme Court was merely one of affirmance of whatever was before that court, to wit, the order overruling the motion for a new trial. It makes no substantial difference as to the form of the decision, as long as its meaning is obvious. An order overruling a motion for a new trial is, in one sense, a judgment. It is true, it is not technically a common law judgment, but it is, nevertheless, a decision of a court, and in that sense it is a judgment, and the record shows that that was the sense in which the clerk used the words decree and judgment. For his use of the word decree shows that he had little knowledge of the technical use of legal terms. We submit, therefore, that the decision of the Territorial Supreme Court was nothing more nor less than an affirmance of an order overruling a motion for new trial, of which this court has no jurisdiction. The mode of removing a cause, in Nevada, from an infe rior court for review in a court of appellate jurisdiction was prescribed by statute and is exclusive. It may be done, the statute declares, "as presented in this title and not otherwise." It is worth while to look at these provisions a little. * See Statute Book, 361. Argument for the plaintiff in error. They will make it plain that what was here affirmed, was the action of the inferior court about a new trial. Section 274, provides for appeals generally. Section 285, shows in what cases and how an appeal may be taken to the Supreme Court from the District Court in Chancery cases. Section 302, prescribes the mode of removing "every final judgment, order, or decision of a District Court, except in Chancery cases," to the Supreme Court, to be re-examined for error in law, and declares that it shall be done by writ of error. Section 308, requires the errors to be specified. Section 275, authorizes an appeal from an order of the District Court granting or refusing a new trial. Section 284, prescribes how the cause shall be taken up when the appeal is made from an order. Section 276, provides that a statement shall be made when an appeal is taken from an order, just as it was made in this case. There was therefore no jurisdiction. If this court, when the case was last here, intimated anything else, it was on an imperfect view of the record; and now, that on such thorough view and full examination of every part of it, as the argument on the merits gives, it sees the true history of the case, it will dismiss the suit. Messrs. G. T. Curtis and C. O'Conner, contra: When this same cause was before the court at a former term, on a motion to dismiss, one of the grounds of the motion was that the judgment of the Territorial Supreme Court, now brought into this court for review and reversal, was an affirmance of an order of an inferior court overruling a motion for a new trial. This court, after hearing this point elaborately argued, held that the judgment of the Supreme Court was not an affirmance of an order of the inferior court overruling a motion for a new trial; that it did not purport at all to be an affirmance of an order overruling a motion for a new trial; but that the plain import of its terms is, that it affirmed a general judgment for the defend Argument for the plaintiff in error. ants in the action. Hence, it was held by this court that the judgment of the Supreme Court is one which can be reviewed in this court by writ of error, and the motion to dismiss was denied. The point, then, in relation to the plain import and effect of the judgment of the Territorial Supreme Court, is really res adjudicata, and ought not to be argued. We submit, however, 1. That the proceeding under the Nevada code, called therein a motion for a new trial, is a special method of review, intended to reach the verdict and the judgment rendered in an action, and to bring the latter up for revision in the court in which it was rendered; and that the appeal from an order overruling such an application is intended to carry into the appellate court, for its revision, the merits of the judgment of the inferior court, and to enable the appellate court to act upon that judgment. Our view of this proceeding is, that it is intended (as a mode of review of a general judgment) for an alternative method, with like efficacy and effect with an appeal from such general judgment or a writ of error, and more convenient and more likely to be embraced, because it unites in the same proceeding relief to be given in respect to the weight of evidence, or newly discovered evidence, and relief to be given, on account purely of erroneous rulings of law. That it unites these two grounds of relief, can constitute no solid objection to the re-examination, in this court, of the pure questions of law contained in a record made under such statute provisions, and brought here by writ of error. That such is the character of this proceeding is shown, we think, by the act of Congress* organizing this Territory, which act committed to the regulation of the Territorial legislature the whole subject of "writs of error, bills of excep tions and appeals," from the Territorial District Courts to the Supreme Court of the Territory; and by the Code of Practice, adopted November 29th, 1861, by the Territorial * Act of Congress, March 2d, 1861, 9; 12 Stat. at Large, 212. Argument for the plaintiff in error. legislature,* under authority conferred by the act of Congress aforesaid. It was certainly competent to the Territorial legislature, under the broad authority conferred upon it, to provide any form of appeal from the District to the Supreme Court, and to give that form any scope and effect that it saw fit. The Territorial Code of Practice, in civil cases, does not prescribe or recognize a common-law bill of exceptions; and it does prescribe and recognize a different mode of excepting to the rulings of a court at the trial of an action. It also provides three modes of bringing errors of law under review after a verdict and judgment; one of which is called a motion for a new trial. The code recognizes but one form of civil action, which it makes the same at law and in equity. It is instituted by complaint.† But the distinction between suits at law and suits in equity is not abolished. Issues are either of law or of fact. If of fact in an action at law, there may be a trial by jury. When there is a trial of issues to a jury, the court is required to state to them all matters of law necessary for their information in giving their verdict, and to furnish to the parties a statement in writing of the points of law contained in the charge, or to sign at the time a statement of such points prepared and submitted by the counsel of either party. This is not a bill of exceptions according to the statute of Westminster; but something quite different, and obviously intended as a substitute therefor. That it is so intended is apparent from the definition of an exception given in § 188; namely, "an objection taken, at the trial, to a decision upon a matter of law." It may be taken for the future purpose of a motion for a new trial, or for the future purpose of an appeal (§ 188). It may be delivered in writing to the judge, or written down by the clerk; or it may be noted on the judge's minutes, and * Laws of Nevada Territory, 314-435. Code of Practice, title i, p. 314. Id. 165, p. 341. |