580 LITIGATING THE CONTROVERSY Ch. 27

of Avoidance (or evasion), there is no ground for Judgment Non Obstante, and the Parties should be required to Plead to an Issue appro- priate to determine the dispute.” 65

STATUS OF RETROSPECTIVE MOTIONS

UNDER MODERN CODES, PRACTICE

ACTS AND RULES OF COURT

310. In general, it may be said that the Retrospective Motions, as they existed at Com- mon Law, were adopted in the Early Period of American Procedural Development. Sub- sequently, due to the lack of a Centralized Court System, under which the Trial Judges sat En Banc, as in England, certain Modifica- tions in the Procedures Regulating these Mo- tions were made. But in substance these Pro- cedures followed and still follow the Pattern developed by the Common Law Practice.

Motions for New Trials

WITH certain Modifications it may be said that the English Common-Law Practice as to Granting New Trials was adopted by the American Courts, being used to Review Errors that occurred at the Trial and which were not Apparent on the Face of the Com- mon-Law Record. And the Grounds for Granting New Trials, as developed in Eng- land, have become the recognized Grounds for New Trials in both Common-Law and Code Jurisdictions.66 The Four Day Period after the Entry of the Verdict, during which, at Common Law, the Motion is normally made, has ranged from Two Days in the State of 67 to Sixty Days in Wis- consin.68 Rule 59(b) of the Federal Rules of Civil Procedure provides that the Motion may be made as late as Ten Days after Judg- ment.

XVIII, Retroopective Motions, 775 (2d ed., Rochester 1934).

Historical Perspective, c. XIX, Trial by Jury, § 7, The Motion for New Trial, 335, 336 (New York 1952).

67 Wash.Rev.Stat. § 402 (Remington, 1932).

68, Wis.Stat. § 270.49 (1949).

According to Millar,69 our Courts have followed the Common-Law Practice in allow- ing more time where the Motion for New Trial is based upon Newly Discovered Evi- dence. A Motion on this Ground may be made within a reasonable time, Not More than One Year from the Date of Judgment, under Rule 60(b) of the Federal Rules of Civil Pro- cedure.

The Motion for New Trial, as at Common Law, is still addressed to the Court’s discre- tion.70 While there is a distinction between a Motion Raising a Question of Law, and one in- correctly characterized as an “Error in Fact,” as, for example, where it is asserted that the Verdict is against the weight of evidence, it seems clear that in most Jurisdictions Errors of Law not productive of manifest injustice will not warrant the granting of a New Trial. Unfortunately, some American Courts have followed the 1835 English Court of Ex- chequer Rule, under which, in the matter of evidence, “an Error of Ruling created per se for the excepting and defeated party a right to a New Trial.” 71 The Common-Law Rule, un- der which a New Trial was not in order, even though mistakes may have occurred, if it appeared upon the whole that substantial Justice had been done, now seems the proper solution. Within forty years after it was adopted, the “Exchequer Rule” was abolished in England under the Judicature Acts, with the Rules of 1875, which provided that a New Trial on the ground of an improper Instruc- tion by the Court or an improper Admission or Rejection of Evidence, was not to be grant- ed unless “some substantial wrong or mis-

Historical Perspective, c. XIX, Trial by Jury, § 7, The Motion for New Trial, 337 (New York 1952).

‘70. Id. at 33&

Historical Perspective, c. XIX, Trial by Jury § 7,

The Motion for New Trial, 338 (New York 1952).

See, also, Crease v. Barrett, 1 Cr. M. & R. 919, 149

Eng.Rep. 1353 (1835L