Achoen v. Andrews
| Decision Date | 26 January 1888 |
| Parties | ACHOEN v. ANDREWS. |
| Court | Maine Supreme Court |
Exceptions from supreme judicial court, Knox county.
An action under Rev. St. c. 22, to recover double the expense of building defendant's part of a partition fence after proper proceedings by the fence-viewers. The verdict was in favor of the plaintiff, and the defendant filed exceptions, and also a motion for new trial, on the ground of newly-discovered evidence.
J. H. Montgomery, for plaintiff. J. E. Hanley, for defendant.
The motion to set aside the verdict as against the evidence cannot properly be considered, against the plaintiff's objection. The case before us does not show that the motion was filed within two days after verdict, as required by the seventeenth rule of court. These rules are as binding on the justices of the court as on the parties before it. Bartlett v. Lewis, 58 Me. 350. If the motion, however, was in fact seasonably filed, we might permit an amendment of the record to show that fact. We have therefore carefully read the testimony, and there seems to be some evidence to sustain the verdict. It ought not to be set aside as being against evidence.
The motion for a new trial, based on the alleged newly-discovered evidence, has been fully considered. The issue to which the new evidence is applicable was whether the plaintiff had procured an adjudication by two fence-viewers as to the value of the fence. This was a necessary issue, and the defendant expressly raised it in his brief statement. The witness upon whom the defendant now relies was examined at the trial upon that very issue, among others. He was one of the fence-viewers. The defendant now gays he did not then know what the witness would say about it. He could have ascertained by inquiry while the witness was on the stand. There should not be the expense and delay of a new trial to enable him to make the inquiry now.
The presiding justice correctly ruled that the recital in the return or certificate of the fence-viewers, of the giving reasonable notice to the parties of the intended proceeding, was prima facie evidence of such notice. Such notice is always essential to their jurisdiction, and when they officially state in their return that the notice was given, such statement is prima facie evidence thereof.
There is clearly no error in the other instructions given, nor in the denials of the defendant's request for instructions, so far as the rulings were unfavorable to...
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