Court of Errors and Appeals, Nashville.
March Term 1818.
A court of equity may, upon a bill filed for the purpose, order a new trial at law, and suspend execution in the mean time where the defendant is insolvent. (Acc. Seay v. Hughes, 5 Sn., 155; Lewis v. Brooks, 6 Y., 167, 184.)
But it should appear that some untoward circumstance prevented an application for a new trial to the court who heard the cause; or some invincible obstruction rendered the application ineffectual, though, in justice, it ought to have succeeded.
A new trial may be granted for excessive damages. (See Boyers v. Pratt, 1 Hum., 90; Goodall v. Thurman, 1 Head, 209.)
Green had declared against Barry in the Circuit Court of Sumner, for an assault and battery, and obtained a verdict and judgment for $600. The circumstances were now detailed in the bill and answer, which will presently be adverted to. Barry hath also sued Green for an assault and battery; which suit is yet depending in the Circuit Court for the county of Smith. Barry has been indicted for assaulting Green with intent to kill him, and has been acquitted. Barry filed his bill for an injunction in the Circuit Court, and obtained one; but it was afterwards dissolved on the answer of Green. The bill stated the circumstances of the assault, and these were answered by the defendant; and the bill and answer were now read in this court.
Barry presented to one of the judges of the Supreme Court a new bill, for an injunction, to be proceeded on in the Circuit Court. It stated the former bill and the matters contained in it; and referred to the answer of Green. He stated both in the former bill and in this, that Green is insolvent, and that in case he should levy the $600 of Barry, and the latter should afterwards recover against Green, that he
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would not be able to pay. In the answer Green offered to give security.
The judge out of court directed an application to be made, in court; and it was now done accordingly.
Haywood, J. —
I believe the damages; in this verdict to be excessive; and certainly a court of equity may, upon a bill filed for the purpose, order a new trial at law, and,
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in case of insolvency of one circumstanced as Green is, may order the execution to be suspended until the untried cause shall be finished. But, in ordering a. new trial at law, it should appear that some untoward circumstance prevented an application for one to the Court who heard the cause; or some invincible obstruction that rendered the application ineffectual, though in justice it ought to have succeeded. The counsel for Barry offers to depose that the notes of the evidence at the trial could not be collected to be presented to the Court oh the motion for a new trial; and, therefore, it could not be made effectually. The answer says that the Judge’s notes were full and complete. A new trial may be granted for excessive damages, where they are enormous. The circumstances here show that a much smaller sum would have been sufficient. But I concur in the remark made by Roane, J., that we are a court of appellate jurisdiction; and this is an application for a second injunction, upon a bill filed in the Circuit Court, we have no power over the cause in its present state, nor until it comes into this court by appeal. Were we to act now, we might, by and by be called upon to examine our own acts with a view to the reversal of them, than which nothing could be more incongruous.
Motion for a second injunction refused.