Goodwin v. Blanchard

• Decision Date: 01 May 1906
• Citation: 64 A. 22,73 N.H. 550
• Parties: GOODWIN et al. v. BLANCHARD et al.
• Court: New Hampshire Supreme Court

64 A. 22

73 N.H. 550

GOODWIN et al.

v. BLANCHARD et al.

Supreme Court of New Hampshire. Sullivan.

May 1, 1906.

Exceptions from Superior Court; Pike, Judge.

Action by E. Charles Goodwin and another against Ora D. Blanchard and another. There was a verdict for plaintiffs for nominal damages. The court denied the motion of plaintiffs for leave to bring persons into court for the purpose of examining them in contradiction of their affidavits on a motion for new trial, and also their motion for new trial, and plaintiffs except. Case discharged.

In support of their motion to set aside the verdict and for a new trial on the ground of alleged misconduct of jurors in making up the verdict, the plaintiffs submitted the affidavit of the sheriff who had charge of the jury during their deliberations. The defendants submitted counter affidavits of some of the jurors. The plaintiffs then moved for leave to bring the jurors into court and examine them "in explanation or contradiction" of their affidavits. The motion was denied solely as a matter of law, and the plaintiffs excepted. The motion to set aside the verdict was also denied.

Burt Chellis and Allen Hollis, for plaintiffs. Ira Colby & Son and Hosea W. Parker, for defendants.

BINGHAM, J. The plaintiffs did not have the legal right to bring the jurors who had given affidavits in opposition to their motion before the trial judge and have them orally examined, even if their testimony would have been competent. The conduct of hearings on motions is largely within the judicial discretion of the trial judge. He may require a motion involving an issue of fact to be heard upon affidavits only, and his ruling will not be set aside unless it is clear that in the particular case he abused his discretion. Strom v. Railway, 81 Minn. 348, 349, 84 N. W. 46; State v. King, 88 Minn. 175, 184, 92 N. W. 905; Gano v. Wells, 36 Kan. 688, 14 Pac. 251; Schoolfield v. Brunton, 20 Colo. 139, 30 Pac. 1103; People v. Tucker, 117 Cal. 229, 49 Pac. 134. He may require the moving party to present his whole case at once, and decline to receive affidavits or other proof in rebuttal of counter affidavits. Amos v. Howard, 1 Sumn. (U. S.) 482, 491, Fed. Cas. No. 320. He may cause persons who have made ex parte affidavits in support of a motion to be brought before him and examined orally with respect to statements made in their affidavits and how they came to give them, for the purpose of testing their knowledge and credibility. Glidewell v. State, 15 Lea (Tenn.) 133; Moore v. State, 90 Tenn. 209, 33 S. W. 1046; People v. Le Chuck, 78 Cal. 317, 339, 20 Pac. 719; United States v. Lloyd, 4 Cranch, C. C. 472, Fed. Cas. No. 15,619. But it is not within his power to require persons who have made ex parte affidavits, either in support of or in opposition to a motion, to give additional affidavits. Forshee v. Abrams, 2 Iowa, 571; Grady v. State, 4 Iowa, 401.

In this state it is provided by a rule of court that no motion grounded upon facts that do not appear in the record or papers on file in the case, or that are not agreed to in writing, will be heard by the court, either in support of or in opposition to the motion, unless the facts are verified by affidavit. Rule of Court No. 48, 56 N. H. 589; Rule of Court No. 43, 71 N. H. 682. This rule is the same as one adopted by the superior court of Massachusetts. Spaulding v. Knight, 118 Mass. 528. While the trial court, on the hearing of a motion involving an issue of fact, may receive the oral testimony of witnesses, it would seem that the practice...