'Wherefore it is now ordered, considered, and adjudged by the court here that the judgment and decree of the District Court of the first judicial district in and for Story County, be and the same is affirmed with costs.'
From this judgment of the Supreme Court of Nevada a writ of error, on the 14th of August, 1863, was taken here.
On the same day the plaintiff in error filed with the clerk of the Supreme Court of the Territory the assignment of errors for this court; that is to say, a specification of the grounds on which they relied here for the reversal of the decision of the Territorial Supreme Court.
In those specifications they complained that the Supreme Court of the Territory refused to reverse the judgment and order of the District Court refusing a new trial. Then followed the specific objections to the judgment and order, some of which were matters of fact.
On the same day that the writ of error from this court was taken out and the errors assigned the plaintiffs petitioned for a citation. In that citation they described the cause or subject-matter which it was their object to have reviewed in this court. They set forth that, after trial and judgment in the District Court, they moved the same court for a new trial; that it was refused on the 13th of November, 1862; that an appeal from that order was taken to the Supreme Court of the Territory; that in the latter court, on the 16th of March, 1863, judgment was rendered affirming the order of said District Court; that the plaintiffs afterwards asked for a rehearing, which was denied them; hence the writ of error.
This court, two terms ago, on the record being brought before them, by a motion to dismiss the case on other grounds assigned, doubted, on looking at the judgment of affirmance above quoted, as given in the Supreme Court of Nevada, whether it was a final judgment or decision reviewable here within the meaning of the act of Congress organizing the Territory, and which gave this court jurisdiction to review 'the final decisions' of the Supreme Court of the Territory, and ordered that point to be argued. It was accordingly argued; the argument turning chiefly on the language of the affirmance.
After the argument, this court refused to dismiss the case on the motion. It then said:
'It is insisted, on this point, that the judgment is merely an affirmance of the order of the District Court overruling the motion for new trial. If this be so, the judgment itself is, in substance and effect, nothing more; and it is settled that this court will not review such an order. The granting or refusing of new trials is a matter of discretion, with the exercise of which, by the court below, this court will not interfere. The circumstance that the discretion was exercised under a peculiar statute by an appellate court, and on appeal, cannot withdraw the case from the operation of the principles which control this court.
'But the majority of the court does not feel at liberty to disregard the plain import of the terms of the judgment rendered by the Supreme Court of the Territory. It does not purport to be an order or judgment affirming an order overruling a motion for new trial, but a judgment affirming the judgment or decree of the District Court, and the only judgment or decree, which we find in the record, is the judgment for the defendants in the action of ejectment.
'If this view be correct, the judgment of the Supreme Court is one to review which a writ of error may be prosecuted.'
The case was accordingly retained for a hearing in regular course. It was now reached, and was argued fully on its merits; the true nature of this judgment or decree of affirmance and of every part of the matter of the jurisdiction being, however, again very fully discussed on a minute examination of all parts of the record, with a presentation of the Code lof Nevada.