96
The Green Bag
motion unless it believes that the new evidence would probably produce a different result. In these cases the courts deal with facts and determine according to their judgment of what the facts require. In every case the presumption should be in favor of the verdict and no error of ruling made in the haste and pressure of a trial should occasion a reversal upon a mere specu lation as to what the jury might have done had the ruling been otherwise. The case should be considered in its entirety, and unless it appears affirma tively that harm has resulted, the error should be disregarded. If the appellant has a grievance it is not because, of any ruling in the course of the trial, but only because that ruling was a hurtful one, probably affecting the result of the case. As it is, we all know that cases are sometimes tried with a view to mak ing a record containing reversible error, and the trial becomes a mere contest of skill between counsel, with the advan tage on the side of him who best under stands the rules of the game. The respect for the verdict of a jury should be more genuine and substantial, and when this is so cases will be tried more upon their merits and the result will not often be in conflict with the justice of the cause. Every case denied a hear ing because of fault of form, and every case decided upon grounds not involv ing its merits, is a reproach to our pro fession. They have advanced far beyond us in England. In 1873 the different courts of common law and chancery were made one court, consisting of two divisions, the High Court of Justice, which had original jurisdiction, and the Court of Appeal, which had appellate jurisdiction. All mere details of practice were left to be governed by rules of court, and violation or neglect of these was
subject to discipline in any case as the court thought appropriate. There is therefore an elasticity and adaptability in the procedure to the requirements of each case which is entirely wanting when the rules are prescribed by in flexible legislative enactments, failure to observe which is fatal to the case itself. For being subordinated to substance, the tendency is continually toward greater simplicity. Pleadings are short and to the point, and in many cases are dispensed with altogether. Preliminary hearings determine whether there is a bona fide controversy, eliminate all ques tions of form, settle the issues, whether of law or fact, fix the time and mode of trial, and the case when tried is tried entirely upon its merits. Dilatory tac tics and sham defenses are well-nigh impossible under this system, and real controversies are disposed of without unnecessary delay and without unneces sary expense. The procedure on appeal is as simple. There is no transfer of the case from one court to another, for the trial division and the appellate division are con stituent parts of one and the same tribunal. All appeals are in the nature of rehearings, and are brought by notice of motion in a summary way, and no petition, case or formal proceeding other than the notice of motion is necessary. This notice may be amended at any time as the Court of Appeal may see fit. So much of the record is used as the questions involved in the appeal may require. The evidence, if questions of fact are to be reviewed, may be ad duced by copy, or if the expense of this is heavy, the original is resorted to. The appellate division may allow amend ments and may receive further evidence upon questions of fact. It may order a new trial, or it may give any judg ment or make any order which should
