M'Alister's Lessee v. Williams
| Decision Date | 31 May 1799 |
| Parties | M'ALISTER'S LESSEE v. WILLIAMS. |
| Court | Tennessee Circuit Court |
[ S. C., ante, 107.]
Ejectment.--Rule to show cause why a new trial should be granted; Joseph Cobb's affidavit was read, stating that he was the real owner under whom the defendant Williams claimed; that it was not in his power to produce his grant at the trial, it being in the possession of John Adair, in consequence of which his tenant could not show any title on the trial; and that he believes if he can get a new trial he can satisfy the court and jury that he has the best title; that Zachariah King, who lives in the State of Kentucky, is a material witness for him; that he believes he can prove by King that E. Walling showed another tree as the beginning corner of the plaintiff, and, finally, that he has discovered evidence since the trial which, in his opinion, will prove E. Walling, the material witness in this case, to be interested.
Williams and Scott, for defendant, stated that any cause which could authorize the Court to set aside a nonsuit, would be sufficient to grant a new trial. There have been two cases in which nonsuits have been set aside during the present term, upon less substantial grounds than are disclosed in this affidavit. The case to which they alluded were those of Sharpless against Sevier and Harrison, and Lewis' Lessee v. Moore, &c., which they stated at length and reasoned therefrom.
Miller and Trimble opposed the rule.
The position assumed by the counsel, that it will require as strong ground to set aside a nonsuit as to grant a new trial, is surely not correct.a1 The setting aside a nonsuit so as to make way for a trial might, with much greater propriety, be compared with the principles which govern the Court in granting continuances, though not strictly applicable. In the case of Sharpless v. Sevier and Harrison, though the suit had been in court three years, the cause had been continued generally, or by consent, until this court, when the affidavit was filed; there was no trial in that case; the affidavit disclosed reasonable exertion to come to trial; unless the plaintiff discovers a disposition to trifle, or such a degree of negligence as to amount to a manifest fault, courts of justice will incline to a continuance upon the first application, and thus avoid dismissing the complaint without a trial, thereby subjecting the party to the...
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Vest v. Bitner
...merely to contradict a witness is not sufficient to warrant a new trial. Shelton v. Southern Ry. Co., D.C., 255 F. 182; McAlister's Lessee v. Williams, 1 Tenn. 119; Gentry v. State, 184 Tenn. 299, 198 S.W.2d 643, 648. In Gentry v. State, supra, our Supreme Court adopted the rule stated in 3......
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Johnson v. Woman's Hospital
...merely to contradict a witness is not sufficient to warrant a new trial. Shelton v. Southern Ry. Co., D.C., 255 F. 182; McAlister's Lessee v. Williams, 1 Tenn. 119; Gentry v. State, 184 Tenn. 299, 198 S.W.2d 643, 648. In Gentry v. State, supra, our Supreme Court adopted the rule stated in 3......
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