Ela v. Ela

• Court: New Hampshire Supreme Court
• Writing for the Court: REMICK, J.
• Citation: Ela v. Ela, 72 N.H. 216, 55 A. 358 (N.H. 1903)
• Decision Date: 07 April 1903
• Parties: ELA et al. v. ELA.

55 A. 358

72 N.H. 216

ELA et al.

v. ELA.

Supreme Court of New Hampshire. Merrimack.

April 7, 1903.

Transferred from Superior Court; Peaslee, Judge.

James H. Ela and Jacob Ela filed claims against the estate of George W. Ela, which claims were allowed, and Robert L. Ela, administrator of the estate of George Ela, petitioned for a new trial. There was a judgment granting a new trial and denying a motion to limit the scope thereof to designated issues, and claimants except. Exceptions sustained in part and overruled in part, and case discharged.

The cases are reported in 70 N. H. 163, 47 Atl. 414.

The defendant alleged that he had in his possession newly discovered evidence tending to prove (1) that there was a statute of Alabama under which the plaintiffs were not entitled to any part of the rents; (2) that the rents paid were in fact less than found by the court at the former trial; (3) that the claim which was the subject of suit in the second case had been released. The petitions were granted, subject to exception. The plaintiffs moved that in the first case the new trial be limited to the question of damages, and in the second case to the question of damages and release. The motions were denied, and the plaintiffs excepted.

Sargent, Niles & Morrill, for plaintiffs.

Mitchell & Foster and Martin & Howe, for defendant.

REMICK, J. "A new trial may be granted in any case, when through accident, mistake, or misfortune justice has not been done and a further hearing would be equitable." Pub. St. 1901, c. 230, § 1. "The question whether a new trial should be granted on the ground that, by reason of newly discovered evidence, a further hearing would be equitable, is a question of fact to be decided at the trial term." Brooks v. Howard. 58 N. H. 91; Davis v. Dyer, 62 N. H. 281; State v. Stone, 65 N. H. 124, 126, 18 Atl. 654; Gray v. Bridge, 11 Pick. 189; Greene v. Farlow, 138 Mass. 146. The superior court has found that "newly discovered evidence makes a different result at a future trial probable, and it is equitable that a further bearing be had." Upon the record presented, it cannot be said that there was no competent evidence to support the findings of the superior court. Cox v. Leviston, 66 N. H. 167, 20 Atl. 246.

It is urged that the books and release, which appear to have been the sole reliance of the court in granting the new trial, were not properly brought to its attention. It is not necessary that the evidence in support of a motion for a new trial should be produced with all the formality required at the new trial. Thus, affidavits are allowable in support of a motion for a new trial, while at such new trial they would be entirely inadmissible. Upon a motion for a new trial upon the ground of newly discovered evidence, it is undoubtedly the rule to require the newly discovered evidence, if a proposed witness, to be shown by the affidavit of the witness himself as well as by the affidavit of the party or his counsel, and if a writing, to require the production of the writing; yet, notwithstanding this general rule, the court may order a new trial without such affidavit or writing, if not then obtainable, and if it satisfactorily appears from the showing made that justice so requires. The language and spirit of the statute, and the discretionary character of the right, forbid a hard and fast rule upon the subject. Pub. St. 1901, c. 230, § 1; Hill. New Tr. 635; Broadhead v. Marshall, 2 W. Bl. 956; White v. Trinity Church, 5 Conn. 187; Barrett v. Railroad, 45 N. Y. 628; Fisher v. People, 103 Ill. 101; Smith v. Cushing, 18 Wis. 310; Read v. Staton, 3 Hayw. 159, 9 Am. Dec. 740; Sorrel v. St. Julien, 4 Mart. (O. S.) 509, 512; Case v. Codding, 38 Cal. 191, 194. In the present case, the books and release were produced at the hearing and identified. Whether they were produced and identified according to the strict rules of evidence, it is unnecessary to consider; for we must presume, in the absence of evidence to the contrary, that any departure from such rules was permitted in the exercise of a sound discretion, in view of the circumstances of the case, as presented by all the...