Bridges & Beers v. Miller, 3 Ala. 746

COLLIER, C. J. It does not explicitly appear from the-bill of exceptions, that a motion for a new trial was regularly made, and continued at the term of the Court at which the jury rendered their verdict in this cause; but conceding such to have been the fact, and we are satisfied, .that the refusal o-f the Judge to entertain the motion at the succeeding term, is not available; •on error.

The granting, or refusiúg- a new trial, is a matter within, the discretion of the Court, trying the cause; and however decided, cannot be revised on appeal- or writ of error.— Nor can the refusal to decide upon such a motion, be thus ' made the ground of objection to a judgment in other respects, regular; for as the appellate Court cannot examine into its merits and determine whether it should have been granted, it cannot undertake to say, that the party complaining;, has been prejudiced by refusing to decide upon his application for a new trial.

And unless error is affirmatively shown to the probable injury of the plaintiff, the judgment twill not be reversed. But the refusal of a Court to decide upon a matter even- within its discretion, is not a case unprovided for by law. In such a case, a mandamus- is the appropriate remedy to compel the Judge to make such a decision, as in his judgment is proper and legal. Dunkin v. Mun. T. Raym. Rep. 235; Rex v. Hay, 4 Burr. Rep. 2295; Commonwealth ex rel. Breckenridge v. The Judges of the Court of Common Pleas. of Cumberland co., 6 Wheeler’s Ab. 556; 1 Serg’t & Rawle’s Rep. 187.

We.have only to add, the judgment-is affirmed.