Moran v. Abbey

McKee, J. This case has been before the court on a former appeal. (58 Cal. 165.) Upon the going down of the remittitur from the decision then rendered, a re-trial was had in the lower court which resulted in a verdict for the defendant, Heffner; but upon a motion for a new trial made by the plaintiff, upon a statement of the case and two affidavits of newly discovered evidence, the court set aside the verdict. Whether that was done upon the grounds of newly discovered evidence, or of any of the specifications of error contained in the statement does not appear by the record.

But the newly discovered evidence related to an alleged conversation between the plaintiff and Heffner about the promissory note upon which the action was brought; and the affidavits concerning it were made by the plaintiff himself and one Wilson, both of whom had testified as witnesses in the case. In his affidavit the plaintiff deposes to “ absolute forgetfulness ” of the conversation, until it had been recalled to his memory by Wilson after the rendition of the verdict. Wilson, however, had not forgotten it, and could have testified to it at the trial, if he had been questioned at all about the subject; but he was not. Yet, as the evidence was obtainable by the exercise of ordinary diligence, the neglect or omission of the plaintiff to draw it from the witness by a proper course of examination, is no ground for a new trial. It is well settled that a new trial will not be granted because new evidence has been found which was known to a witness at the trial of the case, and might have been obtained from him by due attention. (Bond v. Cutler, 7 Mass. 205; MoIntire v. Young, 6 Blackf. 496.)

The issues in the case which Avere submitted to the jury comprised “payment and satisfaction” of the note in suit, and fraud in obtaining a qualified indorsement of the note from the payee after it had been paid; and it is urged that the verdict of [58]the jury was properly set aside, because of errors committed by the court during the trial of the cause in overruling objections to questions propounded to witnesses, in admitting and excluding testimony, and in giving instructions to the jury.

Four or five specifications of error relate to rulings made by the court in denying objections by counsel for plaintiff to leading questions asked by counsel for Heffner, in the direct examination of his witnesses. But these are not errors for which a new trial will be granted. We are not aware of any case in which a verdict has been set aside for the reason that leading questions, although objected to, have been allowed to be put to a witness. (Green v. Gould, 9 Allen, 466; Hopkinson v. Steel, 12 Vt. 582; Parsons v. Huff, 38 Me. 187; Mershoi v. Hobensack, 22 N. J. 372.) And the reason is that the examination of a witness in the trial of a case is a matter within the sound discretion of the trial court, who may, in the exercise of that judicial discretion, allow or disallow leading questions. (§§ 2044-2046, Code Civ. Proc.) A matter resting in judicial discretion is not reviewable in an appellate court; it is only the abuse of such a discretion of which we will take cognizance. In this case no such question is presented by the record.