and while a contrary view seems to have been taken in Harris v. Ray (1855) 15 B. Mon. 628, we are not disposed to follow it, and extend the application of technical rules when not required to apply them either by the letter or the reason of the law. The case cited has long ceased to be generally followed, and is overruled. [Italics supplied.] The same results follow, and a motion for new trial is improper, whether the order challenged is for the entry of a default 22 or for its vacation.23 In neither case is an issue of fact tried; hence, there is no basis upon which a new trial could be had. Questions as to the sufficiency of pleadings, and as to the jurisdiction of the court, cannot be raised by motions for new trial.25 Hence, a motion for new trial, challenging the court's order sustaining or overruling a demurrer, is a nullity.26 The order of a court denying a motion to dissolve a temporary injunction cannot be made the subject of a motion for a new trial; 27 nor can the dismissal of a plea.28 It has been held in some States that, as a motion for a nonsuit admits every material fact which the evidence tends to prove, it presents only a question of law; and that if it is granted and a judgment of dismissal entered, thus terminating the case before a verdict or decision upon the issues of fact, a motion for new trial is not the proper way of testing the correctness of the ruling.29 An order reinstating a cause for trial, following a voluntary nonsuit, is not an order for new trial, because there has been no previous examination of an issue of fact.30 The only questions of law which may be presented by motion for new trial are those which arise upon the pleadings, during the trial 31 Mitter v. Black Diamond Coal Co., 28 Wyo. 439, 445, 206 P. 152, 154; Ervin School Tp. v. Tapp, 121 Ind. 463, 23 N. E. 505; State v. District Court, 49 Mont. 595, 144 P. 159, 161; Price & Miller v. Ratcliffe, 47 Okl. 370, 148 P. 153; Adams & Adams v. Howard, 14 Vt. 158. 154. Taylor v. Taylor, 61 Or. 257, 121 P. 431; Crossland v. Admire, 118 Mo. 87, 24 S. W. 24 Pearl v. Rawdin, 5 Day [Conn.] 244, 250; Harbin v. Hunt, 151 Ga. 60, 105 S. E. 842; Simpson v. Wicker, 120 Ga. 418, 47 S. E. 965 (failure to attach a bill of particulars); Mann v. Barkley, 21 Ind. App. 152, 51 N. E. 946; Gravelle v. Minneapolis & St. L. Ry., 11 F. 569, 571; Johnson v. Shuford, 91 Conn. 1, 98 A. 333; Baldwin v. O'Brien, 1 N. J. L. 418; Goslin v. Wilcock, 2 Wils. K. B. 203, 95 Eng. Rep. 824; Lupton v. Coffel, 47 Ind. App. 446, 94 N. E. 799; Knickerbocker Ice Co. v. Gray, 165 Ind. 140, 72 N. E. 869; Haugh v. Haywood, 69 Ind. App. 286, 121 N. E. 671. 25 State v. Cady, 47 Conn. 44; Houssels v. Coe & Hampton, 159 S. W. 864, 866 (Tex. Civ. App.). Cf. Alden v. Superior Court, 186 Cal. 309, 315, 199 P. 29, 32 (where the question of jurisdiction required the trial of an issue of fact). 20 Schneidt v. Schneidt, 69 Ind. App. 666, 122 N. E. 588; Chivers v. Board of Com❜rs, 62 Okl. 2, 161 P. 822; Vickers v. Robinson, 157 Ga. 731, 122 S. E. 405; Perry v. Acree, 165 Ga. 446, 141 S. E. 212; Jenness v. Co-operative Publishing Co., 36 Idaho 697, 213 P. 351. 27 Anderson v. Englehart, 18 Wyo. 196, 105 P. 571. 28 Butler v. Georgia Agricultural Credit Corporation, 37 Ga. App. 390, 140 S. E. 426. Buchanan v. James, Com'r, 134 Ga. 475, 68 S. E. 72; Tucker v. Hypotheek Min. & Mill. Co., 31 Idaho 466, 173 P. 749; Carscallen v. Lakeside Highway Dist., 44 Idaho 724, 260 P. 162; Murad v. New York, N. H. & H. R. R., 34 R. I. 312, 83 A. 436; Deyo v. Hudson, 226 N. Y. 685, 123 N. E. 851. Contra: In re Stinger's Estate, 61 Mont. 173, 182, 201 P. 693, 696. 30 First Christian Church v. Robb, 69 Or. 283, 138 P. 856. 81 Oxford V. State, 80 Okl. 103, 194 P. 101; State v. Kelly, 57 Mont. 123, 187 P. 637; Ashton v. Thompson, 28 Minn. 330, 336, 9 N. W. 876, 878. of issues of fact.32 Hence, even a motion for rehearing of an order which follows a trial is not necessarily the equivalent of a motion for new trial. Suppose, for example, that a trial court grants a motion for a new trial. Opposing counsel then petitions for a rehearing upon the court's action in granting it. Would anyone seriously contend that the petition is in all respects the same as a motion for a new trial? What is sought in such a case is the exact opposite of a new trial; its purpose is to prevent a new trial and to reinstate the verdict. But, presumably, the theory of the majority opinion would require the conclusion that such a motion is one for a new trial. 33 It has been held that the order of a court denying a motion to set aside a judgment is not the subject of a motion for new trial.35 The Supreme Court of Colorado has said: The motion for judgment notwithstanding the verdict raises no question of fact, but of law only; consequently a motion for a new trial has no application to a ruling upon such motion." The hearing of a motion to correct the record of a judgment is not a trial and provides no basis for a motion for new trial.35 nor does an exception to the form or sufficiency of a decree.36 In the code States where the procedures of law and equity have been integrated, as in the new Federal rules, the conditions which surround the use of motions for new trials are the same in both types of cases.37 That is the reason why the code definitions of new trial speak in terms of retrial of issues of fact, following either the verdict of a jury or determination of such issues of fact by the judge, himself, or upon the report of a referee or master. Many of the opinions heretofore cited in this opinion decided cases which, under the older forms of practice, would have been in equity. Approaching the problem from another angle, we get the same result, contrary to that reached by the majority opinion. A "rehearing," when used in the sense of a new trial, is defined by the authorities as a second hearing of the cause involved in a decree or order "Glendenning v. Slayton, 55 Mont. 586, 179 P. 817; Buettinger v. Hurley, 34 Kan. 585, 9 P. 197; In re Stinger's Estate, 61 Mont. 173, 182, 201 P 693, 696; Alden v. Superior Court, 186 Cal. 309, 199 P. 29, 32; ". . . motions for new trial do not lie from rulings of the courts on questions of fact collaterally raised, and which do not call for formal trial, and where no provision is made for framing issues under the proceedings, such as proceedings supported by affidavits, applications to set apart exempt property, family allowances, and proceedings of similar character." See, Mann v. Barkley, 21 Ind. App. 152, 51 N. E. 946; Linden v. Green, 81 Iowa 365, 46 N. W. 1108. "Continental Gin Co. v. Arnold, 66 Okl. 132, 138, 167 P. 613, 618. Armstrong v. Gresham, 70 Colo. 502, 202 P. 706; Fincher v. Edwin M. Bosworth & Co., 76 Colo. 69, 230 P. 596. Citizens' Trust Co. v. Wheeling Can Co., 199 Ind. 311, 157 N. E. 441. "Vickers v. Robinson, 157 Ga. 731, 122 S. E. 405. School Dist. No. 14, v. School Dist. No. 4, 64 Ark. 483, 43 S. W. 501; State v. Templeton, 21 N. D. 470, 130 N. W. 1009. entered by an equity court on the former hearing.38 In States upon whose experience the Federal civil procedure rules are based, rehearing, when used in the sense of a new trial, has been defined as a reopening of the case for a redetermination of basic facts; 39 with notice to the parties, and an opportunity for them to be heard.40 In this sense, only, is it properly regarded as synonymous with new trial.11 The vital distinction was clearly made by the Supreme Court of Michigan in the McLean case; 42 Appellant contends that the Department had no power to amend its original order, since this was, in effect equivalent to the granting of a rehearing. Guss v. Ford Motor Co., 275 Mich. 30, 265 N. W. 515. The rule of the Guss case, precluding the granting of rehearing, does not mean that the Department may not correct a mistake in its original order. A rehearing involves a reopening of the case for a redetermination of basic facts. [Italics supplied.] The connotation which should be given to the word rehearing, as it was used by appellant in the present case, is much more nearly that which is given to the word when used in seeking reconsideration, by an appellate court, of its own decision, upon questions of law; namely, "an appeal from this court to itself." 43 The Supreme Court has defined it as follows: Ordinarily, a petition for rehearing is for the purpose of directing attention to matters said to have been overlooked or mistakenly conceived in the original decision and thus invites a reconsideration upon the record upon which that decision rested." [Italics supplied.] * 38 3 Bl. Comm. 453-454: "When all issues are tried and settled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved; and a final decree is made; the performance of which is enforced (if necessary) by commitment of the person, or sequestration of the person's estate. And if, by this decree, either party thinks himself aggrieved, he may petition the chancellor for a rehearing; whether it was heard before his lordship, or any of the judges, sitting for him, or before the master of the rolls. For whoever may have heard the cause, it is the chancellor's decree, and must be signed by him before it is enrolled; which is done of course, unless a rehearing be desired. Every petition for a rehearing must be signed by two counsel of character, usually such as have been concerned in the cause, certifying that they apprehend the cause is proper to be reheard. And upon the rehearing, all the evidence taken in the cause, whether read before or not is now admitted to be read; because it is the decree of the chancellor himself, who only now sits to hear reasons why it should not be enrolled and perfected; at which time all omissions of either evidence or argument may be supplied. But, after the decree is once signed and enrolled, it cannot be reheard or rectified but by bill of review, or by appeal to the house of lords." Emerson v. Davies, Fed. Cas. No. 4,437, 8 Fed. Cas. 626; Belmont v. Erie Ry., 52 Barb. [N. Y.] 637, 651; Reed v. Patterson, 44 N. J. E. 211, 14 A. 490, 494: "A rehearing, strictly speaking, is simply a new hearing and a new consideration of the case by the court in which the suit was originally heard, and upon the pleadings and depositions already in the case." 39 McLean v. Eaton Mfg. Co., 286 Mich. 285, 294, 282 N. W. 150, 154. 40 Yee v. State Board of Equalization, 16 Cal. App. (2d) 417, 418, 419, 60 P. (2d) 322, 323. 41 Lewis v. Martin, 210 Ala. 401, 411, 412, 98 So. 635, 645; Kimple v. Conway, 69 Cal. 71, 72, 10 P. 189, 190; Wright v. Dorman, 155 Tenn. 189, 194, 195, 291 S. W. 1064, 1065. 42 McLean v. Eaton Mfg. Co., 286 Mich. 285, 294, 282 N. W. 150, 154. 43 Teeter v. Southern Express Co., 172 N. C. 620, 90 S. E. 927. 44 Atchison, Topeka & Santa Fe Ry. United States, 284 U. S. 248, 259. The purpose of such a petition is to give the court an opportunity to correct its own errors. A trial court needs that opportunity, and is entitled to the privilege, just as much as an appellate court. No monstrous penalty of a new trial is necessary to achieve this end. We should encourage, rather than discourage, open-minded review of such petitions, and prompt action thereon. 46 45 When used in this sense, a petition for rehearing resembles, also, a bill of review, when such a bill is used for the limited purpose of securing reexamination of questions of law, on the theory that there is error apparent upon the face of the record. As we pointed out in Fraser v. Doing, it was the intention of the rule-makers to preserve the remedy formerly available by bill of review; that the purpose of the bill of review "is to permit the same court to examine its earlier record, and to answer the challenge made to its accuracy;" but that a bill of review is not available until the time for a motion for a new trial has passed. What possible purpose could be served by including within the scope of a motion for new trial all requests for reconsideration, by the trial court, of its rulings upon preliminary questions of law, when, by waiting until the time for requesting a new trial has passed, a litigant can raise the same questions by bill of review. Such an interpretation of rule 59 would result in serious prejudice to litigants, in the early stages of litigation, and an undesirable stimulation of the filing of bills of review. The majority's interpretation of Equity Rule 69 violates, also, it seems to me, the spirit of the other equity rules. Thus, rule 72 provided, generally, for the correction, not only of clerical mistakes in decrees or decretal orders, but of errors arising from accidental slip or omission, "upon petition, without the form or expense of a rehearing." [Italics supplied.] This provision is carried over into the new rules, in rule 60 (a). It is made applicable to "judgments, orders, or other parts of the record, and errors therein arising from oversight or omission," upon the initiative of the court, "or on the motion of any party." [Italics supplied.]. Several of the equity rules provided expressly for corrective action, as applied to preliminary rulings. Rule 5 provided for the suspension, alteration, or rescinding by the judge, upon special cause shown, of actions by the clerk in issuing process, taking bills pro confesso, and otherwise. Rule 17 provided for the setting aside of orders pro confesso, or enlarging the time for filing answer; upon cause shown, upon motion. and affidavit. Rule 29 abolished demurrers and pleas, and provided: Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court. [Italics supplied.] Fraser v. Doing, 76 U. S. App. D. C. 111, 114, 130 F. (2d) 617, 620. That was exactly the situation of the present case; the principal case never came to trial: the situation was not one appropriate for rehearing in the sense of a new trial. Instead, it was one appropriate for application of rule 19, which provided, generally, that process, proceedings, pleadings, or record might be amended by permission of the court and that: The court, at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. Misnaming appellant's motion to vacate, by calling it a petition for rehearing, certainly did not constitute an error which affected the substantial rights of the parties. In short, there was nothing in any of the equity rules to suggest that a rehearing-in the sense of a new trial-was either necessary, or proper, to secure reexamination by the court of a ruling upon a question of law preliminary to trial. Finally, although the original order of the district court was final in the sense that it was appealable, it was not final in the sense that it disposed of the case on the merits. The authorities cited herein demonstrate that a new trial necessarily assumes an adjudication on the merits and that a motion for a new trial is improper in any other event. Not only is this true, but rule 41 (b) of the new rules of civil procedure expressly provides that a dismissal for lack of jurisdiction does not operate as an adjudication upon the merits. The dismissal in the present case was for lack of jurisdiction because of defect of parties. The grounds of both motions to dismiss were clearly so specified, and the order of dismissal in each case was based expressly upon the motion. 47 Generally speaking, it may be said that the new rules evidence no intention of penalizing litigants because of such informalities in their pleadings, as appeared in appellant's motion in the present case. Instead, it is their clear purpose "to secure the just, speedy, and inexpensive determination of every action;" 48 to avoid the old conception of procedural rules "as ends in themselves upon whose rigid altar has ultimate justice been sacrificed." 49 47 Fed. Rules Civ. Proc., Rule 41(b): Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits. [Italics supplied.] 48 Fed. Rules Civ. Proc. See also, Address of Chief Justice Hughes, 21 A. B. A. J. 340, 341: "It is manifest that the goal we seek is a simplified practice which will strip procedure of unnecessary forms, technicalities and distinctions, and permit the advance of causes to the decision of their merits with a minimum of procedural encumbrances." 49 Laverett v. Continental Briar Pipe Co., E. D. N. Y., 25 F. Supp. 80, 81. |