U.S. Supreme Court DIMICK v. SCHIEDT, 293 U.S. 474 (1935)

[Page 293 U.S. 474, 489]

As a corollary to these rules is the further one of the common law, long accepted in the federal courts, that the exercise of judicial discretion in denying a motion for a new trial, on the ground that the verdict is too small or too large, is not subject to review on writ of error or appeal. New York C. & H. Railroad Co. v. Fraloff, supra, 100 U.S. 31; Wabash Ry. Co. v. McDaniels, 107 U.S. 454, 456, 2 S.Ct. 932; Fitzgerald & Mallory Const. Co. v. Fitzgerald, 137 U.S. 98, 113, 11 S.Ct. 36; Wilson v. Everett, supra, , 11 S.Ct. 664; Lincoln v. Power, supra, 151 U.S. 438, 14 S.Ct. 387; Luckenbach S.S. Co. v. United States, 272 U.S. 533, 540, 47 S.Ct. 186. This is but a special application of the more general rule that an appellate court will not re-examine the facts which induced the trial court to grant or deny a new trial. [Footnote 1] Barr v. Gratz, 4 Wheat. 213, 220; The Abbotsford, , 445; Railroad Co. v. Fraloff, supra, 100 U.S. 31; Terre Haute & Indiana Ry. Co. v. Struble, 109 U.S. 381, 384, 385 S., 3 S.Ct. 270; Fishburn v. Chicago, Milwaukee & St. Paul Ry. Co., 137 U.S. 60, 61, 11 S.Ct. 8; Ayers v. Watson, 137 U.S. 584, 597, 11 S. Ct. 201; Wilson v. Everett, supra, , 11 S.Ct. 664; Luckenbach S.S. Co. v. United States, supra, 272 U.S. 540, 47 S.Ct. 186.

[Page 293 U.S. 474, 492]

of to the court en banc, was never adopted by the common law. [Footnote 2] But this Court has found in the Seventh Amendment no bar to the adoption by the federal courts of these novel methods of dealing with the verdict of a jury, for they left unimpaired the function of the jury to decide issues of fact, which it had exercised before the adoption of the amendment. Compare Nashville, Chattanooga & St. Louis Ry. Co. v. Wallace, 288 U.S. 249, 264, 53 S.Ct. 345, 87 A.L.R. 1191.

[Page 293 U.S. 474, 498]

light of any legal analogy, whether the denial of the motion because of the plaintiff's consent could be deemed in any proper sense an abuse of discretion.

The CHIEF JUSTICE, Mr. Justice BRANDEIS, and Mr. Justice CARDOZO concur. Footnotes

Footnote 1 The power of the English appellate courts to review such action has been enlarged by statute, and the motion itself must be made to the Court of Appeal. Supreme Court of Judicature Act, 1875, 38 & 39 Vict., c. 77, Order 58; Rules of the Supreme Court of Judicature, Order 39. See Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 482, 53 S.Ct. 252, note 9.

Footnote 2 In England, before the adoption of the Seventh Amendment, the motion was made not to the trial judge but to the court sitting en banc. Blackstone's Commentaries, v. 3, p. 391; Tidd's Practice, v. 2, pp. 819- 821. By the Supreme Court of Judicature Act 1875, 38 & 39 Vict., c. 77, Order 58, see Order 39 of Rules of Supreme Court of Judicature, the motion was required to be made to the Court of Appeal, from whose decision an appeal might be taken to the House of Lords.

The original organization of the federal courts was capable of use in such a fashion that the motion could be made to the circuit court, something in the nature of a court en banc, but no such practice developed. Judiciary Act of 1789, c. 20, 4, 17, 1 Stat. 73, 74, 83; Hinton, Power of Federal Appellate Court to Review Ruling on Motion for New Trial, 1 Univ. of Chicago Law Rev. 111, 113.