Cox v. Leviston

• Decision Date: 14 March 1890
• Parties: Cox v. LEVISTON et al.
• Court: New Hampshire Supreme Court

20 A. 246

66 N.H. 167

Cox

v. LEVISTON et al.

Supreme Court of New Hampshire. Grafton.

March 14, 1890.

Exceptions from Grafton county.

Petition for a new trial of the cause reported in 63 N. H. 283. The petition sets forth a variety of grounds upon which it is claimed that justice has not been done, through accident, mistake, or misfortune, and that a further hearing would be equitable. The court granted the prayer of the petition, allowing a new trial to the plaintiff, and the defendants excepted.

W. L. Foster and F.D. Currier, for plaintiff. Bingham, Mitchell & Batchellor and J. H. Albin, for defendant.

SMITH, J. A new trial was granted at the hearing on this petition "because justice has not been done, through accident, mistake, or misfortune, and a further hearing would be equitable." Gen. Laws, c. 234, § 1. If the finding is one of fact, it is conclusive, unless upon the facts and evidence reported it appears that there is no competent evidence to support it; and the question is whether such accident, mistake, or misfortune has been shown as will entitle the plaintiff to the relief prayed for. The specific reasons reported for granting a new trial are three: (1) A mistake was made by the plaintiff's counsel in their understanding of that part of the reserved case relating to Dyer's declarations. (2) There is reason to believe a mistake was made in the finding that there was no way by prescription for the plaintiff. (3) There is reason to believe that the omission of a finding of notice to the defendants of the plaintiff's use of the way, and of the claim or right under which he used it, was a mistake.

1. The evidence as to Dyer's declarations was excepted to. The question of its competency need not be considered, nor the question whether by the words "accident, mistake, or misfortune," as used in the statute, is meant such error or mistake as results from fortuitous circumstances, and not such as arises from error of judgment or misapprehension on the part of counsel in reference to the points of the case as they arise in the course of the trial. Handy v. Davis, 38 N. H. 411, 415; Heath v. Marshall, 46 N. H. 40. And see In re French, 17 N. H. 472, and Bergeron v. Bank, 62 N. H. 655. If the mistake made by counsel furnishes cause for a new trial, the plaintiff cannot now avail himself of it, the point having been raised and decided against him upon the case saved and reported in 63 N. H. 283. Like a question of law once decided at the law term, it is not reconsidered in the same case except on a motion for a rehearing. Plaisted v. Holmes, 58 N. H. 619; Bell v. Lamprey, Id. 124; Bell v. Woodward, 48 N. H. 437, 443; Russell v. Dyer, 43 N. H. 396; Carter v. Jackson, 58 N. H. 156: Manufacturing Co. v. Head, 59 N.H.332, 337; Preston v. Insurance Co., Id. 49. So, where a motion to set aside a verdict for error in the ruling of the judge, or because the verdict was against evidence, is overruled, and a case is reserved, a subsequent motion to set aside the verdict on the ground that, by accident, mistake, or misfortune, justice has not been done, and founded on matters embraced in the original exceptions, will be denied upon the ground that the matter has been adjudicated. Wright v. Boynton, 40 N. H. 353, 357; Hale v. Railroad Co., 61 N. H. 641.

2. The conclusion that "there is reason to believe a mistake was made in the finding of 'no way by prescription for the plaintiff'" does not bring the case within the rule for granting new trials. A verdict or award is not set aside unless the conflict between it and the evidence upon which it is founded is so strong that it can be seen that the tribunal was...