First Int'l Bank of Esmond v. Davidson

• Decision Date: 08 February 1917
• Citation: 161 N.W. 281,36 N.D. 1
• Parties: FIRST INTERNATIONAL BANK OF ESMOND v. DAVIDSON et al.
• Court: North Dakota Supreme Court

36 N.D. 1

161 N.W. 281

FIRST INTERNATIONAL BANK OF ESMOND

v.DAVIDSON et al.

Supreme Court of North Dakota.

Jan. 16, 1917.

Rehearing Denied Feb. 8, 1917.

Syllabus by the Court.

Where an answer fairly apprises a plaintiff that a certain defense will be made, and upon the trial another defense is mainly relied upon, which plaintiff is unable to meet, the circumstances warrant the trial court in holding that plaintiff is taken by surprise.

The newly discovered evidence presented as a ground for new trial may be that of witnesses who were present in court.

This court is reluctant to reverse orders granting new trials, and will only do so where abuse of discretion is clearly shown.

Record examined, and held that abuse of discretion is not shown.

Appeal from District Court, Benson County; C. W. Buttz, Judge.

Action by the First International Bank of Esmond, N. D., against Geo. H. Davidson and another. Judgment for defendants, and from an order granting a new trial, they appeal. Order affirmed.Ase J. Styles, of Esmond, for appellants. Torger Sinness and Clyde Duffy, both of Minnewaukan, for respondent.

BIRDZELL, J.

Plaintiff and respondent asserted a right to the possession of a certain mare and colt as mortgagees of one John Richter. Defendants and appellants claimed the right to possession of the same mare and colt under a subsequent mortgage. Plaintiff's action was accompanied by claim and delivery proceedings under which the possession of the mare and colt was taken from defendants. Separate answers were interposed upon behalf of the defendants, which would reasonably apprise the plaintiff that defendants would raise a question as to whether plaintiff's and defendants' mortgages covered the same property. In the plaintiff's mortgage the property was described as “one iron gray mare * * * called Doll.” Defendants claimed the property taken under a description referring to her as “a dapple gray.” The case was tried before a jury, and a verdict returned for the defendants, the jury finding that defendants were entitled to a return of the mare and colt described in the complaint, and, in case a return could not be had, that defendants should recover from the plaintiff the full value of the animals, namely $200. A motion for a new trial was made in the court below, based upon the statement of the case and upon the grounds of surprise and newly discovered evidence. The motion was supported by affidavits of Torger Sinness, plaintiff's attorney, and by John Duffy and Matthew Duffy, two of plaintiff's witnesses. These affidavits set forth the circumstances showing the plaintiff's surprise, and also the newly discovered evidence. The trial court granted a new trial mainly upon the grounds of surprise and newly discovered evidence. From the order granting a new trial the defendants appeal to this court. The question to be decided upon this appeal is whether or not the trial court abused its discretion in granting the new trial.

We are aware of appellants' contention that certain errors in the verdict should have been corrected without a new trial. These errors consist in giving the defendants a verdict in excess of their special property as mortgagees, and in finding in favor of Braithwait, as well as in favor of Davidson, in the absence of proof of any property interest in Braithwait. If, however, there was ample support for an order granting a new trial, based upon the grounds of surprise and newly discovered evidence, the order of the trial court should be affirmed, regardless of the fact that other errors might have been corrected without a new trial.

[1] The answer interposed on behalf of defendant Davidson contains this paragraph:

“Defendant further alleges that the mare attempted to be described in the complaint is a dapple gray, and not an iron gray, and alleges that this defendant has a valid chattel mortgage upon the same, correctly describing her as a dapple gray...