Davis v. Bass

• Decision Date: 28 November 1853
• Citation: 4 Ind. 313
• Parties: Davis v. Bass and Another
• Court: Indiana Supreme Court

4 Ind. 313

Davis v. Bass and Another

Supreme Court of Indiana

November 28, 1853

ERROR to the Lawrence Circuit Court.

The decree is affirmed with costs.

J. S Watts, for the plaintiff.

C Dewey, for the defendants.

OPINION

Stuart J.

Davis filed his bill in chancery, setting forth certain proceedings at law wherein he had been plaintiff. After praying process, answer, &c., the bill proceeds, "and that, upon the premises being found true, to adjudge and decree to the complainant a new trial of the issues in said common-law cause," &c.

It appears that Davis had sued Bass and another, in the Lawrence Circuit Court, for burning his steam sawmill, laying his damages at 10,000 dollars. The result was a verdict of not guilty. Davis moved for a new trial, alleging, 1. That the verdict was contrary to evidence; 2. That one of the jurors had misbehaved; 3. That Bass had treated the jury to spirituous liquors; 4. That certain evidence had been improperly excluded; and, 5. Newly discovered evidence. The motion for a new trial was overruled, and judgment on the verdict. Davis excepted, and prosecuted his writ of error to the Supreme Court. But it does not appear that he set out the evidence.

It may be mentioned as part of the history of the case, that the trial at law was had in December, 1845. In December, 1846, and during the pendency of the law case on error in this Court, Davis filed his first bill in chancery in the Lawrence Circuit Court, praying, as now, for a new trial, &c. In May, 1848, the first bill was dismissed without prejudice; and in May, 1850, the present bill was filed. Demurrer to the bill sustained.

It is believed that every point made in this bill for a new trial, was made and determined by the Circuit Court on the motion for a new trial at law. Having compared the causes there filed with those now insisted upon, we can discover no substantial difference.

The strongest point made, on both occasions, is the newly discovered evidence. It was supported, agreeably to the rule, by Davis's own affidavit, and that of Owens, the proposed witness, stating what he would testify. So that the motion in the law Court was not overruled in consequence of any informality. The remedy of Davis was complete at law by writ of error. Of this remedy it appears he has availed himself. It would be a dangerous feature in chancery jurisdiction if after all this, that Court had the power to wipe out proceedings at law, and remit the parties back to where they began.

...