The Abuse of New Trials

Authors

Everett P. Wheeler

Abstract

It would seem a truism to state that the object of courts of justice is to do justice between the parties. Theoretically, for the purpose of promoting this object, a revision is allowed of the proceedings of the court of first instance. This is sometimes had before the full court sitting in bane, and sometimes before an appellate tribunal. But the experience of every lawyer who has much to do with the actual trial of cases and the argument of appeals, is that the decision of the appellate tribunal very often turns, not upon the merits of the case, but upon questions quite collateral to the merits, and that in many cases new trials are granted when the appellate court ought properly to render final judgment upon the merits. To the Federal Courts, in equity and admiralty cases these remarks do not apply. There an appeal is taken upon the whole record. The Appellate Court has jurisdiction to decide the appeal upon the merits, and to render final judgment, if it does not affirm the decision of the court below. This power is of great advantage to litigants. It enables causes to be decided upon the merits, and with much less delay than that involved under our present codes of procedure in common law cases.

Recommended Citation

Everett P. Wheeler, The Abuse of New Trials, 3 Mich. L. Rev. 257 (1905).
Available at: https://repository.law.umich.edu/mlr/vol3/iss4/1