Schellhous v. Ball

By the Court, Sanderson, J. A new trial is sought upon the following grounds :

1. Insufficiency of the evidence;

2. Surprise; and

3. Error in law.

I. The real point in controversy, and substantially the only point litigated, was whether the money sued for had been paid by the defendant to the plaintiff’s wife pursuant to the plaintiff’s direction; and upon that question the testimony was conflicting, which is a sufficient answer to the first ground of the motion.

II. To entitle a party to a new trial on the ground of surprise the same must be conclusively shown by the affidavits ; and moreover it must appear that the fact or facts from which the surprise resulted had a material bearing upon the case, and that the verdict may be mainly attributed to their effect. (Hartwright v. Badham, 11 Price, 383.) Upon this ground new trials should be granted with great caution, for in many cases it is used as a pretext and a cover for carelessness and [608]inattention rather than as a meritorious ground for relief. A party claiming to have been injured must show that.the surprise has not resulted in any degree from his own fault or negligence, and must in addition claim his relief at the earliest opportunity. If he can relieve himself from his embarrassment in any mode, either by a nonsuit or a continuance, or the introduction of other testimony or otherwise, he must not take the chances of a verdict, but must at once fortify his position by resorting to all available modes of present relief.

In the present case a dispute arose between counsel, pending the argument of the case to the jury, as to whether a certain promissory note which had been handed to a certain witness and concerning which the witness had testified, as both admit, was in fact introduced in evidence. Thereupon the presiding Judge was called upon to determine the disputed fact, who decided that the note had been offered in evidence. If this decision was legal surprise and counsel could, as he claims, have shown by competent testimony that the note had in fact no application to the case but was a part of a different transaction, he should then and there have applied to the Court, on the ground of his surprise, for leave to introduce his testimony. It was not too late, in the discretion of the Court, for him to do so, and doubtless, if satisfied that the allegation of surprise was made in good faith, the Court would have permitted it, and there is no pretense that his testimony was not at hand. When during the progress of a trial conditions are found to exist which may amount to legal surprise, it is better for the purposes of justice and the convenience of Courts and litigants to afford relief at once and on the spot, if it can be done; and in the exercise of that sound discretion which the law recognizes as vested in Judges they should not refuse such relief, if attainable under the circumstances, and it is not to be presumed that they will. This discretion however should be exercised with great care and only in cases were the Court is satisfied that the surprise has not resulted from carelessness, for its exercise in such a case would be demoralizing and tend to a relaxation of that vigi