Dodge v. Kendall

• Citation: 4 Vt. 31
• Parties: JACOB F. DODGE and ARAUNAH WATERMAN v. RUFUS KENDALL
• Decision Date: 01 March 1831
• Court: United States State Supreme Court of Vermont

4 Vt. 31

JACOB F. DODGE and ARAUNAH WATERMAN v. RUFUS KENDALL

Supreme Court of Vermont, Washington

March, 1831

[Syllabus Material]

This was a petition to the Court for a new trial in a cause in which the petitioners were defendants, and the petitionee was plaintiff. The grounds of the application were, 1st. new discovered evidence; 2d. surprise, and 3d. that one of the plaintiff's witnesses in the original suit was incompetent by reason of interest. It appeared the original action was on a jail bond, and that the only issue put to the jury was, whether Dodge, the principal debtor, had committed an escape between the 30th day of November, 1819, and the 29th day of May, 1820. To prove this issue one Moses Peck was called as a witness, who testified that he saw Dodge in Middlesex, out of the limits, within the times aforesaid. The defendants then offered four witnesses, who testified that said Peck's character for truth and veracity was below par, and he was not to be believed. The petition further stated that the plaintiff, Kendall, being unable to support said Peck, called on Mr. Upham, his counsel, (who had become recognized for the prosecution of the suit,) who testified in substance, that within the time specified in the pleadings, he made a writ in favor of Dodge, against a Mr Dixon, of New-Hampshire; that Dodge told him he was going himself to try to secure his debt, and afterwards told him he had been; that Mr. Upham not having been a witness previously in the cause to this point, and the defendants having no notice that he was to be offered as a witness, they were at that time unable to prove the negative. The new evidence alleged to have been discovered since the trial, tended to show that Mr. Upham must have been mistaken. Harry Richardson testified in an affidavit filed by the petitioner, that he, Richardson, was employed by Dodge to secure the debt against Dixon; that he took the writ made by Upham, went, and transacted the whole business; and that Dodge did not go. The affidavit of Noah Dodge tended to prove that Dodge, the petitioner, did not go to New Hampshire, but that Harry Richardson went, & c. It appeared by the affidavit of John Howe, that he was one of the jury who tried said cause, and that the verdict was founded upon the testimony of Mr. Upham. Dodge, one of the petitioners, stated in his affidavit, that he did not transact the business testified to by Mr. Upham, that he had no recollection of leaving the liberties of the jail yard previous to the first day of June, 1820, and that he was surprised by Mr Upham's testimony, & c.

Petition dismissed with cost.

Mr. Merrill, for the petitioner.--As the case stands, it is obvious that the verdict is wrong; that injustice has been done. The facts stated in the petition and affidavit of Mr. Dodge, shew that instead of the defendants being guilty of any neglect or laches, in not procuring the testimony at the trial, they could not have anticipated the testimony of Mr. Upham. Mr. Upham, although he had been a witness at the former trial, did not testify in relation to the escape; but this testimony was reserved for the final trial. The defendants, therefore, can say with great truth that his testimony was a surprise upon them. Indeed, the nature of the case, arising from the pleadings, is such, that it would be impracticable for the defendants to be prepared with testimony to meet such circumstantial evidence as might be in the power of the plaintiff to produce. The question was whether Dodge escaped between the 30th of November, and the first day of June? Now, it is apparent that the defendant could not come prepared with evidence to negative an escape every day during that time. They discovered that Peck was relied on, and they came prepared to meet him, & c.; but they had no reason to suppose there was other testimony.

As the granting of new trials " depends on the legal discretion of the Court, guided by the nature and circumstances of the particular case," it may be deemed unnecessary to refer to authorities; yet the defendants cannot forbear to remark that this case comes clearly within those fundamental rules which have been established upon this subject. " A general verdict can only be set right by a new trial which is no more than having the cause more deliberately considered by another jury, when there is a reasonable doubt, or perhaps a certainty that justice has not been done." " The parties may be surprised by a case falsely made at the trial, which they had no reason to expect, and, therefore, could not come prepared to answer." --1 Sellon, 482-3. " When a new trial was prayed for on the ground that material evidence had come to the knowledge of the petitioner since the trial, and the petitioner had been in no fault, the court ordered a new trial." --Inhab. of Stockbridge v. West Stockbridge, 13 Mass. 302. " If a material witness testify on the trial who is interested in favor of the party producing him, and the interest be known at the time to the party producing the witness, but not known to the other party, it will be a good cause for a new trial." --Niles v. Brackett, 15 Mass. 378. It appears from the affidavit of Dodge, that Mr. Upham was incompetent on the ground of interest--but this fact was unknown to the defendants until after the trial. " In a suit against C & B, C was present at the trial, but did know that F, who was a witness at the trial, knew of other material facts. But B, who was not present at the trial, knew before trial that F knew said facts; yet a new trial was granted." --Jackson v. Laird, 8 Johns. Rep. 381; (Johns. Dig. 347.) In Blake v. Howe, (1 Aikens, 310,) the Court say, " Now the defendant ought not only to shew a surprise, but that he can make an equitable defence to the action." In the present case, both these points are clearly proved. So careful has the Supreme Court in this state been to prevent any injury to parties by surprise, that in Stark weather v. Loomis, (2 Vt. 573,) the court say they " will grant a new trial as for surprise, when the evidence has been excluded, which was offered in reliance upon a reported case."

Upham and Keith, for petitionee.--1. The petitioners, we insist upon their own proof, are not entitled to a new trial. The books inform us that a new trial is usually granted for some erroneous decision made upon the trial, such as the admission of improper evidence, the rejection of proper evidence, or the mis-direction of the judge to the jury. It is, however, sometimes granted upon the discovery of new and material evidence since the trial; but it must be such as the party could not with diligence have discovered before the trial. New trials are never granted for the default, omission, or negligence, of the parties, their counsel, or attornies, in not discovering and coming prepared with all the...