Gaines v. White
| Decision Date | 05 January 1891 |
| Citation | 47 N.W. 524,1 S.D. 434 |
| Parties | Gaines v. White, Sheriff. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The granting or refusing of a motion for a continuance of a cause rests in the sound discretion of the trial court, and its ruling will not be reversed, except for the most cogent reasons. The court below is apprised of all the circumstances of the case, and the previous proceedings therein, and is better able to decide upon the granting or refusing the application than an appellate tribunal. When the trial court exercises a reasonable, and not an arbitrary, discretion, its action will not be disturbed.
2. Affidavits of jurors will not be received to impeach their verdicts, unless authorized by statute, and only then upon the grounds, and in the manner, permitted by the statute.
3. An application to open a case on the ground that the party has been surprised, or has discovered new evidence, is usually addressed to the discretion of the trial court. Convenience as well as analogy, would seem to require that it should be determined exclusively by the court of original jurisdiction. It is very much of the same character as a default or other laches suffered by mistake or surprise which may be relieved against in proper cases by the court in which the action is pending. Unless a very grave error has been committed, or gross abuse of discretion has been exercised, by the court below, the appellate court should not disturb its ruling.
4. An application for a new trial on the ground of newly-discovered evidence must show by affidavit (1) that the applicant has been vigilant in the preparation of his case for trial; (2) that new and material facts have been discovered since the trial, which could not by reasonable diligence have been produced at the trial; and these facts should be explicitly stated in the affidavits.
5. An application for a new trial on the ground of surprise should be granted with great caution; for in many cases it is used as a pretext and a cover for carelessness and inattention rather than as a meritorious ground for relief. Surprise may be often feigned and pretended, and the opposite party may not be able to show that such is the case. The party alleging surprise should be required to show it conclusively, and by the most satisfactory evidence within his reach.
6. For a party to take advantage of the insufficiency of the evidence to support the verdict, the objection must specify the particular in which such evidence is alleged to be insufficient, designating the statutory grounds upon which the motion will be made, whether upon affidavits, or minutes of the court, or a bill of exceptions, or a statement of the case.
7. When a party is charged with fraud, the presumption of law is that he is innocent until it has been shown that he is guilty. Under our statute, the question of fraudulent intent is one of fact, and not of law.
8. In an action of claim and delivery, when the complaint alleges ownership and right of possession in the plaintiff, and wrongful detention by the defendant, a general verdict for the plaintiff finds all these issues for the plaintiff. Such a verdict determines that he is owner and entitled to possession.
9. A general verdict for the plaintiff will not be set aside because the jury did not find damages. Damages are not the prime object in an action of claim and delivery. They are but the nominal issue.
10. It is a general rule that a party cannot complain of an error which is practically beneficial to him. A verdict will not be set aside for an error which is in favor of the party excepting to it.
Appeal from circuit court, Minnehaha county.
Bailey Davis & Lyon and E. A. Butterfield, for appellant. Keith & Bates and E. H. Wilson, for respondent.
This was an action of claim and delivery brought by plaintiff against the defendant to recover the possession of certain personal property alleged to have been wrongfully taken from the plaintiff by defendant on September 23, 1887. The action was commenced on the 2d day of November, 1887. The plaintiff alleges in his complaint that he was the owner and in the actual possession of said personal property; that the same was wrongfully taken from him by the defendant, and that the value of it was $3,500. The defendant alleges that he was sheriff of McCook county, where such personal property was at the time of the taking, and that as such sheriff he took the property from the plaintiff by virtue of several writs of attachment issued against the property of M. T. Jaqueth, and alleges that the property in the suit was owned by said M. T Jaqueth, and not by the plaintiff. The cause was tried December 12, 1888, before a jury; verdict returned for plaintiff; judgment entered; motion for new trial overruled May 10, 1890; appeal taken and perfected from the order denying a new trial and from the judgment. The motion for a new trial contains all the alleged substantial errors of which the appellant complains, and they are as follows: (1) Abuse of discretion of the court in denying defendant's motion for a continuance. (2) Misconduct of the jury. (3) Newly-discovered evidence, material to the defendant, which could not, with reasonable diligence, have been discovered before the trial. (4) Insufficiency of the evidence to justify the verdict, and that the verdict was against the law, and not responsive to the issues. (5) Errors of law occurring at the trial, and excepted to by the defendant.
As to the denial of a continuance upon the application of defendant. The motion was based upon the affidavit of M. A. Butterfield, one of defendant's attorneys, subscribed and sworn to December 13, 1888. It will be seen from an examination of the affidavit that the only ground upon which the continuance was asked was the absence of witnesses. The defendant in his assignment of errors alleges surprise because Messrs. Winsor & Kittredge, his attorneys, withdrew from the case as the same was called for trial, and he makes this fact the most essential in urging the abuse of discretion of the court in overruling the motion for continuance; but he evidently has overlooked the fact that this was not brought to the attention of the court upon that motion, nor until after the trial of the case was had,--this fact first appearing on a motion for a new trial. So far as is discernible from the abstract and record, the only affidavit supporting the motion for a continuance was, as we have stated, that of M. A. Butterfield. This affidavit states that P. V. Hand, S. H. Fowler, and a Mr. Ballard, are the witnesses whose testimony was desired. The affidavit states that the affiant expects to prove by said Hand that some time in the fall of 1887 he served on M. T. Jaqueth a notice of attachment of certain book-accounts, and that Jaqueth then stated that he was the owner of the book-accounts, and had not sold them to the plaintiff, Gaines. The testimony in the case shows that the plaintiff has never claimed the books or accounts. As to witness Fowler, he appeared in person, and testified on the trial. As to witness Ballard, the defendant expects to prove that the defendant is a man in moderate means, and that he lived by working by the month driving team, etc. The affidavit does not comply with the requirements of the law to obtain a continuance. It shows no material facts which the defendant can prove by the absent witnesses, nor does it state that he believes them to be true. It shows no diligence whatever in attempting to obtain the witnesses, or in procuring their depositions. The granting or refusing a continuance rests in the sound discretion of the court below, and its ruling will not be reversed, except for the most cogent reasons. The court below is apprised of all the circumstances of the case, and the previous proceedings, and is therefore better able to decide upon the propriety of granting or refusing the application than an appellate tribunal; and when it exercises a reasonable, and not an arbitrary, discretion, its action will not be disturbed. There certainly was nothing in the affidavit presented to the trial court that would warrant it in granting a continuance.
As to misconduct of the jury. Affidavits of jurors will not be received to impeach their verdicts. This is the general rule, unless changed by statute authorizing such attack upon the verdict by those rendering it. The only statutory ground upon which the affidavit of jurors is permitted to be heard is, whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. Subdivision 2, § 5088, Comp. Laws. This question was fully considered at this term, in the case of Murphy v. Murphy, ante, 142, and we have no reason to change our opinion upon it. The rule enunciated in that case will be adhered to in this. The affidavits of the jurors do not state facts coming within the statutory exception, and the ruling of the court on this point was correct.
Is the appellant entitled to a new trial on the ground of surprise and of newly-discovered evidence? A former verdict, or other decision, may be vacated and a new trial granted on application of the party aggrieved on the ground of newly-discovered evidence, material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial, and on the ground of accident or surprise which ordinary prudence could not have guarded against. Subdivisions 3, 4, § 5088, Comp. Laws. The application in each case must be made upon affidavits. An application to open...
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