Louis Brandeis

“ More frequently the reason given for the denial of review is that the granting or refusing of a motion for a new trial is a matter within the discretion of the trial court. [8]
It has been suggested that a review must be denied because of the historical limitation of the writ of error to matters within the record, of which the motion for a new trial was not a part. ”

“ The Circuit Court of Appeals deemed it unnecessary to consider the nine instructions relating to liability, since the verdict for the plaintiffs 'upon the issues which determined liability was amply sustained by the evidence.' Nor did it discuss the two instructions which alone referred to the amount of damages recoverable. ”

“ Jurisdiction of the federal court was invoked on the ground of diversity of citizenship. The Glass Works pleaded in bar several defenses; and it also set up a counterclaim in the sum of $2,000 as damages for failure to make delivery as provided by the contract. Three trials before a jury were had. At each of the first two the verdict was for the defendant; and each time the judgment entered thereon was reversed by the Circuit Court of Appeals with a general direction for a new trial, (19 F. (2d) 273; 33 F. (2d) 420) . On the third trial the plaintiffs recovered a verdict for $1 ”

“ As the jury fixed the damages at $1, the verdict should have been set aside and a new trial granted. Since in view of Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann. Cas. 1914D, 1029, the court is 'not at liberty to direct judgment for such amount as we believe would fairly represent' plaintiffs' damages, the parties should be given the opportunity of disposing of the case without further litigation by entering into an agreement as to the damages. If the parties do not so agree, a new trial should be granted ”

“ If within thirty days the parties shall stipulate that the judgment be modified by substituting for $1 the sum of $18,500 (or other agreed sum) , with interest at the rate of 5 per cent. from December 4, 1920, and costs, the judgment as so modified shall be affirmed; otherwise the judgment shall be reversed and a new trial be had 'limited only to an ascertainment * * * of appellants' (plaintiffs') recoverable damages and the amount of appellee's counterclaim if upon a new trial it appears that appellee is entitled to any recovery or set-off on its counterclaim.' 59 F. (2d) 539, 540. ”

“ Ogden v. United States (C.C.A.) 112 F. 523; or if it acted on the mistaken view that there was no jurisdiction to grant it, or that there was no authority to grant it on the ground advanced, Felton v. ”