Fretwell v. Laffoon

• Decision Date: 31 October 1882
• Citation: 77 Mo. 26
• Parties: FRETWELL, Plaintiff in Error, v. LAFFOON.
• Court: Missouri Supreme Court

77 Mo. 26

FRETWELL, Plaintiff in Error,

v.LAFFOON.

Supreme Court of Missouri.

October Term, 1882.

Error to Case Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

This was a proceeding by garnishment against Laffoon, who was summoned as debtor of Daniel Hibler, the defendant in the principal case. On the 19th day of July, 1878, Laffoon answered, and on the 23rd day of July, 1879, judgment was rendered against him upon his answer. On the following day a motion for new trial was filed, and subsequently sustained. The plaintiff excepted to this action of the court and refused further to prosecute his action, whereupon the court dismissed the same for want of prosecution, and the plaintiff sued out his writ of error.

Allen Glenn and Railey & Burney for plaintiff in error.

Wooldridge & Daniel for defendant in error.

I.

SHERWOOD, J.

Did the circuit court err in granting the garnishee's motion for a new trial?

Our statute authorizes the verdict to be set aside, and the granting of a new trial, “where there has been a mistake or surprise, of a party, his agent or attorney,” etc. R. S. 1879, § 3704.

Surprise in the sense here used, is nearly allied to accident, which is a prominent subject for equitable relief. 3 Grah. & Wat. on New Tr., 874. Of accident Mr. Justice Story says: “By this term is intended not merely inevitable casualty or the act of Providence, or what is technically termed vis major, or irresistible force, but such unforeseen events, misfortunes, losses, acts or omissions, as are not the result of any negligence or misconduct in the party.” 1 Story Eq. Jur., § 78. In the People v. Superior Court, 5 Wend. 114, where an application was made for a mandamus to vacate a rule granting a new trial, a peremptory writ was awarded on the ground that the trial court had improperly granted the new trial, basing its action on the ground of newly discovered evidence, the supreme court holding that the mover for a new trial was guilty of gross negligence in not discovering prior to the first trial, that the witness was a material witness, and that moreover the testimony was merely cumulative. And it was there contended that though the lower court might have erred, yet that the granting of a new trial was a matter of discretion, not depending on any fixed or established rules of law, and, therefore, that the supreme court could not interfere; but that court held that there were certain principles applicable to new trials which were clearly settled and well defined by long continued practice, and an uninterrupted series of decisions of that and other courts, and after stating those principles, among which was, that a party is bound and presumed to know the leading points that were to be litigated in his case, remarked: “In cases to which these principles clearly and unquestionably apply, the granting or refusal of a new trial is not a matter of discretion. The parties have a legal right to a decision conformable to those principles. Where there is doubt upon the point of negligence, or as to the character of the evidence, or as to its materiality, it becomes a matter of discretion, and the court will not, perhaps I ought to say, cannot rightfully interfere. But no such doubts exist in this case. * * We think it, therefore, a proper case for a mandamus. It is very possible that the purposes of justice might be subserved in this individual case by the granting of a new trial; but general principles, whose operation has been found salutary, and which have grown into authority under the sanction of repeated decisions, and almost immemorial usage, cannot yield to the hardship of particular cases. It is of cardinal importance that the rules and principles which regulate the proceedings and decisions of courts should be uniform and stable. The security of the citizen is essentially increased whenever the territory of undefined discretion in any of the departments of our government is circumscribed by the establishment of well defined and clear principles.”

In Peers v. Davis, 29 Mo. 184, this court, per Ewing, J., approvingly citing 3 Grah. & Wat. on New Tr., 398, said: “Surprise, in its legal acceptation, denotes an unforseen disappointment in some reasonable expectation, against which ordinary prudence would not have afforded protection. Where the witness resided--whether forty miles from the place of holding court--was a fact of which the party could readily have informed himself by ordinary diligence; and that it was not known is to be attributed to his own laches; and surprise produced by the laches of a party is never a good cause for a new trial.”

The text book just cited states that “if the surprise was owing to the least want of diligence, the applicant will be without sufficient excuse, and his motion will be denied. It is a condition precedent to his attaining relief, that he shall be wholly free from blame. To grant a new trial upon any other terms, would be holding out a premium to inefficiency and remissness, and would inevitably lead to great abuses. The cases universally support this wholesome doctrine.”

Proceeding upon this theory of the law, this court in O'Conner v. Duff, 30 Mo. 595, held that the motion for a new trial was properly overruled, where the defendants alleged surprise by the testimony of their witness, but it did not appear they had sought any information from him before he was sworn, or made any effort to ascertain what his testimony would be. In another case in this court a similar ruling was made; a defendant claimed that his codefendant had executed by mistake, one of the two notes sued on; that he was never advised of the mistake; could not discover it by any possible diligence, and never discovered it till after the trial had ended. And the co-defendant corroborated this by affidavit alleging that he was totally ignorant of his being sued on two notes till he was called on the witness stand. Commenting on these facts Wagner, J., observed: “Where a person receives notice of a trial, he is at once put on inquiry. The period of notice is always sufficiently ahead of the sitting of the court, to afford parties full opportunity to ascertain the precise situation of their cause and what testimony they will require on their trial. And courts will not aid parties where they have failed to take the requisite steps to procure their evidence, and more especially where they have been guilty of unpardonable neglect. Before they ask the court to help them, they must have evidenced a disposition to help themselves.” Richardson v. Farmer, 36 Mo. 35. The books abound with similar instances.

II.

And in regard to mistake of a party as the ground for...