Fitch v. Sidelinger

• Decision Date: 20 December 1901
• Citation: 96 Me. 70,51 A. 241
• Parties: FITCH v. SIDELINGER.
• Court: Maine Supreme Court

51 A. 241

96 Me. 70

FITCH

v. SIDELINGER.

Supreme Judicial Court of Maine.

Dec. 20, 1901.

(Official.)

Exceptions from supreme judicial court, Knox county.

Action by Daisy Fitch against James Sidelinger for trespass. Verdict for plaintiff. Motion for new trial, and exceptions by defendant. Overruled.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, POWERS, and FOGLER, JJ.

L. M. Staples, for plaintiff.

M. A, Johnson and O. D. Castner, for defendant.

WHITEHOUSE, J. This is an action to recover damages for a trespass upon the person. The jury returned a verdict for the plaintiff for $319.58, and the case comes to this court on exceptions and a motion for a new trial on the ground of newly-discovered evidence.

1. The Exceptions. Before the trial of the cause at the December term, 1900, the defendant's counsel presented to the court a written motion to have the action dismissed, alleging that a new declaration, setting out a different cause of action, had been substituted for that originally filed with the writ, without the knowledge or permission of the court. It appears from the exceptions that the defendant "offered to support the same by evidence, and asked for a postponement of the trial for that purpose." The presiding justice overruled the motion, and required the defendant to proceed to trial. It does not appear, however, that the defendant offered or was prepared to present any evidence at that time, but his motion was for a "postponement of the trial for that purpose." The ruling of the presiding justice denying this motion for a postponement was clearly a matter of discretion, and, in the absence of anything tending to show that this discretion was not properly exercised, the ruling was not subject to exceptions.

2. The Motion. It appears from the testimony of Mrs. Orff, whose evidence is alleged to have been discovered after the trial in December, that she was a near neighbor of the defendant, and had known him from childhood. She further testifies, inter alia, that she was summoned to appear at the December term of court, when the case was tried, but the night before received word that the writ had been changed, and that they did not need her evidence. She also states that the defendant called at her house to see her just before the December court, and told her that he wanted her to come over.

It is true that the witness elsewhere states that she was summoned in another case, and denies that she had told the defendant before the trial that she knew anything about this case. But she nowhere retracts the statement that the defendant called to see her in December before the trial, or explains her testimony that she was summoned to appear at court in December, and the night before...