NEW TRIAL. A re-examination of an Is sue in fact before a court and a jury, which has been tried at least once before the same court ; Hill. N. Tr. 1. A rehearing of the le gal rights of the parties, upon disputed facts, before another jury, granted by the court on motion of the party dissatisfied with the re sult of the previous trial, upon a proper case being presented for the purpose; 4 Chitty, Gen. Pr. 30; Grah. & W. N. Tr. 32. It is either upon the same, or different, or addi tional evidence, before a new jury, and prob ably, but not necessarily, before a different judge. It is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court or referee; Har per v. Hildreth, 99 Cal. 265, 33 Pac. 1103.
The origin of the practice of granting new trials is of extremely ancient date, and, consequently, involved in some obscurity. Blackstone gives the most connected and satisfactory account of it of any writer ; 3 Cora. 387.
Courts have, in general, a discretionary power to grant or refuse new trials, accord ' ing to the exigency of each particular case, upon principles of substantial justice; 1 I Burr. 390. That the trial judge is not satis fied with a verdict is not binding on the court in bane, but deserves serious consider ation ; L. J. 55 Q. B. 403. This discretion is generally not reviewable on error ; Hardin v. Inferior Court, 10 Ga. 93; Kerr v. Clampitt, 95 U. S. 188, 24 L. Ed. 493 ; Rex v. Gough, 2 Doug. 791; and such action by the court may be taken if a motion is not made within the time limited by rule or statute, since "if the court conceive a doubt that justice is not done, it is never too late to grant a new trial, but not on application of the party" ; Lord Mansfield in 5 Term 437; and the same opinion was expressed by Kenyon, C. J., and Buller, J., in 5 Term 436. It should be exercised with great caution where a new trial is asked only because the verdict is against the weight of the evidence; Ruffner's Heirs v. Hill, 31 W. Va. 428, 7 S. E. 13.
Where one party moves for a new trial and the opposing party consents thereto, the court is not compelled to grant the same; Smedley v. R. Co., 45 Ill. App. 426. An or
der granting a new trial operates to set aside the judgment; Wheeler v. Kassabaum, 76 Cal. 90, 18 Pac. 119.
"Ordinarily a court has no power to grant a new trial after the adjournment of the term if no application has been made pre vi ous to the adjournment and no continance granted"; Belknap v. U. S., 150 U. S. 588, 14 Sup. Ct. 183, 37 L. Ed. 1191; Sanderson v. U. S., 210 U. S. 168, 175, 28 Sup. Ct. 661, 52 L. Ed. 1007, where it was held that the power to grant a new trial after the term may be given by statute and that the provi sion of U. S. R. S. § 1088, permitting a mo tion for a new trial on behalf of the govern ment within two years after final disposition of a claim by the court of claims was within the power of congress, inasmuch as, where the government consents to be sued, it may attach such conditions as to it seem proper. And in Pennsylvania by statute (1903) the supreme court may authorize the trial court to: grant a new trial, nunc pro tuno, after the term at which a }prisoner was convicted and sentenced for murder in the first degree, when it is made to appear that there is ground for substantial doubt of guilt. But a new trial may be granted after judgment so long as the case is still under the control of the trial court and if the motion was made reasonably within the rule of the state stat ute or common law ; Kingman v. Wester Mfg. Co.; 170 U. S. 675, 18 Sup. Ct. 786, 42 L. Ed. 1192.
The usual grounds for a new trial may be enumerated as follows : The not giving the defendant sufficient no tice of the time and place of trial, unless waived by an appearance and making a de fence, will be a ground for setting aside the verdict; 3 Price 72; Lisher v. Parmelee, 1 Wend. (N. Y.) 22. But the defendant's ig norance must not have been owing to his own negligence, and the insufficiency of the notice must have been reasonably calculated to mislead him; 3 B. & P. Kitchen v. Crawford, 13 Tex. 516 ; Seymour v. Miller, 32 Conn. 402.