Sweeney v. Jarvis (6 Tex. 36, 1851)

Wheeler, J.

The giving of the bond was the institution of the claim of the. party. If defective when objected to for that cause, it was we think within the province of the court to permit the objection to be obviated by amendment or by giving a new bond.

In support of the remaining ground on which it is proposed to. reverse the judgment, we are referred to decisions of tiie courts of Kentucky and Mississippi, where it seems the practice is for the Appellate Court to revise the judgment of tiie court belowgranting a new trial; and if the new trial was improperly granted, to set aside the proceedings subsequent to tiie first verdict, and maintain flic verdict rendered upon (lie first trial. (4 Mon. R., 4; 7 How. Miss. R., 609.) Sncli seems also to bo the practice in Indiana and Illinois, and perhaps in some other States. (1 Blackf., 47; 1 Gilm. R., 160; 1 Cooke R., 90.) In Mississippi and Illinois this practice is founded on statute. (7 How. Miss. R., 634; 1 Gilm. R., 160.) And, although the references made have not afforded us that information, we think it not improbable that it is matter of statutory regulation in other States where the practice exists. For it is the doctrine of the common law that I he granting or refusing of a new trial rests within the legal discretion of the court, and cannot be assigned as error. (2 T. R., 4; 4 Taunt. R., 555; 2 Ashm. R., 31; 1 Dev. R., 100; 10 Verm. R., 520.)

It is the settled practice of this court to revise the judgment, of the District Court refusing a new trial. But there is no case in which it lias revised á judgment granting a new trial. There seems to be less occasion for the exercise of a revising power in the latter case than in the,former. If a new trial is improperly refused, the injury is irreparable. This may be the case where it is improperly granted, but it is not necessarily so., nor is such the natural or probable consequence. Ordinarily and in the absence of those casualties which may deprive a party of evidence upon the second trial which he had upon the lirst, the presumption is (hat the justice of the case will be as certainly attained upon the second as upon the first trial. For upon the second trial, as Blaclcstone in treating of this subject justly observes, “the parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master of the subject, and nothing is now tried but the real merits of the case.” (3 Bl. Com., 391.)

Great, injustice, however, may be done by “lending too easy an ear” to applications for new trials. A party whose cause is just may be thus delayed in its prosecution until his witnesses are dead, his evidence lost or destroyed, and his rights ultimately defeated, or if successful in the end,