Zaleski v. Clark. CARPENTER, J. A plea in abatement was necessary in order to raise the question of jurisdiction. I think that plea was filed too late. The defendant was described in the writ as a resident of New Haven, and as such service was made on him. He appeared in court, pleaded to the merits, and the cause was reached for trial. I think he thereby waived the objection and conclusively admitted, for the purposes of this case, that his residence was in New Haven. A "new trial" granted upon motion for error upon a former trial, means a new trial of the issue of fact before tried. Where an issue of fact was tried by the court, and a special finding of facts made, and upon the facts so found the court as a conclusion of law rendered judgment for one of the parties, and the other party moved for a new trial for error in the conclusion of the court, and a new trial was granted without qualification, it was held that there should be a new trial of the facts before found. But the court had power, in granting the new trial, to limit it to the conclusion of the court as to the law upon the facts, without disturbing the finding of facts. The power to grant new trials is not dependent upon statute, but is incidental to courts of common law. Whether where the facts are found, and the judgment of the court is only a conclusion of law upon the facts so found, the proper mode of carrying the case up for revision by the Supreme Court is not by motion in error or writ of error.-Note, p. 405. ASSUMPSIT to recover the price of a plaster bust made for the defendant; being the same case in which this court granted a new trial, ante Vol. 44, p. 218. The case came again before the Court of Common Pleas, and was tried to the court upon the former plea of the general issue, before Peck, J. There had been a special finding of the facts by the court 45 397 76 538 Zaleski v. Clark. upon the former trial, which is given in full in the former report of the case. Upon the second trial the plaintiff's counsel offered one Thompson as a witness to prove that the plaster bust of the defendant's deceased husband, which he had made for her, was a correct copy of a certain photograph of the deceased, and that the workmanship of the bust was good. To this testimony the defendant's counsel objected, for the reason that on the former trial the facts proposed to be proved by the witness were in issue; that the parties were then fully heard in reference to them with their proofs, witnesses and counsel; and that after the hearing the court made a finding concerning them in writing, which was duly filed with the clerk of the court; and that the matters were therefore res adjudicata and could not be again, between the same parties, the subject matter of judicial inquiry; that both of the parties were, by reason of the finding, estopped upon this trial from offering any testimony concerning any of the facts contained in the finding. The counsel for the plaintiff then claimed that he was not estopped by the finding from offering testimony in regard to any and all the points covered by that finding, and that he proposed to try the case de novo, and in all respects as if there had been no previous trial and finding of facts. The court overruled the objection and admitted the evidence, and decided that the plaintiff should be permitted to go fully into all the facts involved in the case and try it de novo. To this ruling the defendant's counsel excepted. The counsel for the plaintiff then examined the witness in regard to the character of the bust, as a good work of art and a good representation in plaster of the photograph. He also called and examined witnesses in regard to all the questions of fact upon which a finding had previously been made. To all this testimony the counsel for the defendant objected for the reasons before stated. The court overruled the objec tion, (the defendant excepting to the ruling,) and admitted the testimony. The court having rendered judgment for the plaintiff the defendant moved for a new trial, for error in the above rulings of the court. Zaleski v. Clark. C. Ives, in support of the motion. 1. In Woolf v. Chalker, in 1862, (31 Conn., 124,) being an action at law, HINMAN, C. J., expressed great doubt whether the finding of facts in that case could be regarded strictly as any part of the record, because there was then no statute (as in equity) authorizing it. The legislature in 1864 remedied this defect, by a statute which is on page 444, of the revision of 1875, § 9. 2. Upon the first trial of this case, the court, pursuant to the terms of this statute, found specifically the facts, and as such they were made a part of the record, and thus became res adjudicata, as much so as if they had been found by a committee, or had been embodied in a decree in equity. Munson v. Munson, 30 Conn., 425. 3. This finding is a judgment of the court upon the facts therein contained; until reversed or set aside it imports absolute verity; to dispute it is to dispute the truth; it is conclusive upon the parties and their privies, and they are estopped from denying or questioning its truth. "The vocabulary of judges has been well nigh exhausted to supply [such an estoppel] with honorable and endearing titles." Freeman on Judgments, §§ 246, 247, 249, and authorities there cited. 4. The best interests of the parties litigant, the welfare of society and the true policy of the state, require that after the contestants have had a full and fair trial before a competent tribunal, and that tribunal has made a finding of the facts, which finding has become a matter of record, the parties shall not be permitted to afterwards contest again those facts. "Human life is not long enough to allow of matters once disposed of being brought under discussion again." "A party whose interests are placed in jeopardy by a trial, has a right to judicial immunity from the consequences of further trials involving the same issues." Webb v. Rocky Hill, 21 Conn., 474. 5. That degree of confidence in and respect for our courts which is essential for the public weal cannot be maintained if to-day a court is permitted to find facts diametrically opposed to those which the same court, upon precisely the same evidence, found yesterday. Zaleski v. Clark. 6. It makes no difference in this case that a new trial had been advised by the Supreme Court, for the new trial would only have been shortened and simplified to the extent that certain facts had already been found and made a part of the record. The plaintiff was now at liberty to prove other facts if he could; and, if he could not, the trial would have been on questions of law arising upon the facts which appeared of record. T. C. Ingersoll, contra, cited Bouvier's Law Dict., "Trial" and "New Trial;" 2 Graham & Wat. on New Trials, 32; Hawkes v. Truesdell, 99 Mass., 557; State v. Behimer, 20 Ohio S. R., 576; Donahue v. Klassner, 22 Mich., 254; Brenner v. Coerber, 42 Ill., 497; Ryan v. Tomlinson, 39 Cal., 639. LOOMIS, J. When this case came before this court at a former term it came up on a special finding of the facts by the Court of Common Pleas, with a judgment rendered upon those facts in favor of the plaintiff; the defendant moving for a new trial on the ground that the court erred in applying the law to the facts so found; and this court advised that a new trial be granted on that ground. When the case came up for re-trial in the Court of Common Pleas, the plaintiff proceeded to introduce his evidence, when the defendant's counsel objected to the evidence on the ground that the facts sought to be proved by it were the same facts on which evidence had been introduced on the former trial, and that the finding then made by the court was an adjudication upon these facts which was conclusive upon the parties. The court overruled the objection and allowed the plaintiff to proceed with his evidence in the same manner as if there had been no former trial and finding of facts. The defendant contends that this ruling of the court was erroneous, and having had judgment rendered against him, now asks for a new trial. It is obvious that the precise objection made by the defendant to the introduction of the plaintiff's evidence, namely, that the former finding was a conclusive adjudication between the Zaleski v. Clark. parties, was not well taken, as, if that finding was set aside and the whole case opened by the order granting the new trial, there was no longer any finding to operate as an adjudication; while if the finding was not set aside and the whole case opened by that order, the plaintiff had no right whatever to proceed to a new trial of the whole case, and the objection should have been taken to his attempt so to proceed and not to the evidence which he offered when the trial was commenced. In other words, the question was wholly one of practice, not of evidence; the evidence offered being pertinent and admissible if the plaintiff had, as a matter of practice, the right under the order granting a new trial, to a full re-trial of his case; and no evidence whatever being admissi ble if he was not, as a matter of practice, entitled to such re-trial. The objection that ought to have been taken was thus a preliminary one and was necessarily a fundamental one in the case. As however no objection has been made by the counsel for the plaintiff to the form in which the objection was taken in the court below, we will consider it as sufficient to raise the question whether the plaintiff, upon the granting of the new trial to the defendant, was entitled to a full new trial of all the facts as if no finding of facts had previously been made, or whether that finding was to stand and the order for a new trial was to extend only so far back as to cover the error upon which the new trial was granted. The term "new trial" has been a familiar one to the pro-fession in this state since our early colonial history, and had acquired a settled meaning in England before our ancestors came to this country. It is believed that it has always been used in the sense of a complete re-trial of a cause, except in certain instances of which we will speak hereafter. These new trials were always re-trials of the facts of a case, and the term "new trial" is defined by Bouvier in his Law Dictionary, as "a re-examination of an issue in fact." Previous to the year 1762 they were granted only by the General Assembly, upon petition of the aggrieved party. In that year a statute was passed giving to the Superior and County Courts VOL. XLV.-51 |