Fuller v. Little

• Decision Date: 30 September 1873
• Parties: HENRY FULLERv.JOHN Z. LITTLE.
• Court: Illinois Supreme Court

69 Ill. 229

1873 WL 8441 (Ill.)

HENRY FULLER

v.JOHN Z. LITTLE.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. WILLIAM W. FARWELL, Judge, presiding.

This was a bill for an injunction, filed by Henry Fuller against John Z. Little, to enjoin the collection of a judgment at law and for a new trial. The facts of the case are fully stated in the opinion of the court.

Messrs. STORY & KING, for the appellant.

Messrs. MERRIAM & ALEXANDER, for the appellee. Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a suit in equity, brought by Fuller, the appellant, against Little and Bradley, the appellees, to enjoin proceedings under a judgment against Fuller, in favor of Little, and to obtain a new trial in the suit at law wherein the judgment was rendered.

The judgment, being for $2880, was recovered by Little in an action of assumpsit, upon an alleged special contract with Fuller to employ Little as stage manager of the theatre of the former in the city of Chicago, for one year, from July 4, 1869, at a salary of $30 per week until August 1, 1869, and $60 per week after that date.

The bill avers that the complainant only carried on the theatre till August 1, 1869, when he disposed of it to one Aiken, and that the only employment of Little, and the only services rendered by the latter to Fuller, were from about March 10, 1869, until August 1, 1869, at a salary of $30 per week, which was paid in full to Little at the time last named; and alleges that the judgment was procured by fraud and false swearing on the part of Little; that there has been newly discovered testimony since the trial, as well as some other matters, which will be hereafter noticed.

The court below, on motion of the defendants, dissolved the injunction which had been granted, for want of equity appearing on the face of the bill, and afterwards, on motion of defendants, dismissed the bill without prejudice. The complainant appealed.

The bill first alleges, that the complainant was taken by surprise by the testimony of Little of his employment by Fuller for a year. But this employment was alleged in the declaration, and it can not be held to be a reasonable ground of surprise on the part of a suitor at law, that a party should testify to the existence of such a contract as he describes in his declaration as the cause of action upon which he brings his suit. The bill avers the complainant's belief, that his own denial of the employment of Little for a longer period than August 1, 1869, would have been sufficient to defeat the suit, had it not been for certain letters which were introduced in evidence on the trial by Little, which letters bore date on and after July 20, 1869, and purported to be in answer to other letters written by Little as stage manager for complainant, during the last ten or eleven days of July, 1869, and were on the subject of the employment of the persons sending the letters, for the theatre.

It is then averred, that, since the trial, the complainant has discovered that the letters were in fact written by the parties, by the procurement of Little and his friends, long after the said suit had been brought, for the fraudulent purpose of influencing the jury against the complainant, by introducing the letters in evidence as if genuine, and received by Little prior to August 1, 1869.

None of the letters appear in the bill, nor is there an attempt in any way to state their contents, further than that they were concerning employment at the theatre. We can not see the material bearing of these letters upon the verdict. We must be satisfied that a different result would probably have been produced had they not been introduced, before we can grant a new trial on this ground. Holmes v. Stateler et al. 57 Ill. 209.

We can not accept the belief of the complainant upon the subject. The letters should have been set forth, or such a statement of their contents, that the court could see for itself the probable effect of the evidence.

The bill next sets forth, that, since the trial, the complainant has discovered four witnesses, by whom he can prove certain admissions made by Little which would be contradictory of the idea of his employment for a longer period than to August 1, 1869. As to two of these witnesses, the admissions were during the course of two certain conversations, which occurred between Little and the complainant, at which the witnesses were present.

As an excuse for not producing these two witnesses at the trial, it is alleged that complainant had so many conversations of the same character with Little, that he did not notice who was present. But he should have so noticed and recollected it. Yates v. Monroe, 13 Ill. 218.

The excuse alleged indicates the probable existence of other testimony of the same kind, which might have been had at the trial by the exercise of ordinary diligence. So far, the allegations as to all this newly discovered evidence are, that it had been discovered since the trial, not since the denial of the motion for a new trial. If the discovery had been previous to the motion, full relief could have been afforded on such motion, and a subsequent application to a court of chancery for relief would not be entertained. It is subsequently averred, that an application for a new trial was made and overruled, and that much of said newly discovered evidence was unknown to the complainant at that time, and came to his knowledge since the entry of the judgment.

The averment is too vague and indefinite. It should have appeared distinctly what the testimony was which had been discovered since the overruling of the motion for a new trial. And the answer as to all this alleged newly discovered testimony is, that there is no evidence whatever of its existence, save the statements in the bill verified by the oath of the complainant, and no excuse shown for not supporting the same by any additional evidence.

A motion for a new trial, founded upon newly discovered testimony, should be supported by the affidavits of the witnesses...