The Green Bag
454
In furtherance of this principle, four propositions may be suggested. (1)
Questions of law conclusive of
the controversy or of some part thereof, should be reserved and a verdict should be taken subject thereto, if the questions are at all doubtful, with power in the court, and in any other court to which the cause may be taken on appeal, to
relief or measure of damages must be
applied, depending upon which view of a doubtful question of law is taken ultimately, the trial court should have power, and it should be its duty, to submit the cause to the jury upon each alternative and take its verdict thereon, with power in the trial court, and in any court to
which the cause may be taken on appeal,
enter judgment either upon the verdict
to render judgment upon the one which
or upon the point reserved, as its judg
its decision of the point of law involved may require.
ment upon such point reserved may
(4)
require.
This is a common-law practice, still in use in some states. It ought never to have been abandoned. The pro
position was recommended in the report of the committee of the American Bar Association already referred to and, after debate, was adopted overwhelm ingly.‘1 It is discussed in that report" and also in the paper heretofore referred to.‘8 (2)
In case a new trial is granted,
it should only be a new trial of the question or questions with respect to which the
Any court to which a cause is
taken on appeal should have power to take additional evidence,
by afi'idavit,
deposition, or reference to a master, for the purpose of sustaining a verdict or judgment, wherever the error complained of is lack of proof of some matter capable of proof by record or other incontrovertible evidence, defective certification, or failure to lay the proper foundation for evidence
which can, in fact, without involving some question for a jury, be shown to be competent.“
verdict or decision is found to be wrong,
Perhaps, in one respect, the rule, should go further. If, though in form
if separable.
the matter is one for the jury, yet the
The judicial working out of this rule
was one of the triumphs of Chief Justice Doe.
His argument is unanswerable:—
"There is no general rule that when there has been an error in a trial, the party pre judiced by it has a legal right to a new trial. He has a legal right to a cure of the error,
nature of the proof is such that the finding of the jury would be directed, the appellate tribunal should be able to receive the evidence.
IX.
No judgment should be set aside
or new trial granted for error as to any matter of procedure unless it shall appear
but not a choice of the remedies. When the erroneous part of a. case is cured,
the general principles of our jurisprudence do not require the application of the remedy to other parts of the case which do not need it."‘'‘
The rule is adopted in the Revised Code of Kansas.“ (3) Wherever a difi'erent measure of '1 Rep. Am. Bar Ass'n. xxxiv, 82. "1 Ibtd., 582-585. 9' 4 Ill. Law Rev., 503-4. "Lisbon v. Lyman, 49 N. H.. 582. ‘5 Kansas Rev. Code Civ. Proc., §307. This is also the English practice. Order 39, rule 7.
to the court that the error complained of has (a) resulted in a violation of sub stantive law or (b) deprived a party
of some right given by adjective law to insure a fair opportunity to meet his adversary's case or a full opportunity
to present his own, provided it appears that he had a case to present or had a Cf. Rules of Snlijevised rerne Court (English), 58,00 rule 4; Kansas Code Civ. Proc. Order 5580. See discussions in 3 I1]. Law Rev., 586, 4 Ill. Law Rev., 505, Rep. Am. Bar Ass'n., xxxiv, 598-600.
