Halstead v. Horton

Citation18 S.E. 953,38 W.Va. 727
PartiesHALSTEAD . v. HORTON.
Decision Date27 January 1894
CourtSupreme Court of West Virginia

18 S.E. 953
38 W.Va. 727

HALSTEAD .
v.
HORTON.

Supreme Court of Appeals of West Virginia.

Jan. 27, 1894.


New Trial—Newly-Discovered Evidence—Continuance—Appeal—Exceptions.

1. A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be. or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.

2. A motion to postpone until another day the submission of the case to the jury is addressed to the sound discretion of the trial court under all the circumstances, and the appellate court will not reverse a judgment on the ground of a refusal to postpone, unless such refusal plainly appears to have been an abuse of such discretion.

3. Where a party intends to review in the appellate court the action of the trial court in rejecting or admitting evidence, he must make such ruling the subject-matter of a formal bill of exceptions, or he must in some way distinctly and specifically make such ruling a ground of his motion for a new trial.

4. A case in which these rules are applied. (Syllabus by the Court.)

Error to circuit court, Greenbrier county.

Action by Virginia Halstead against John D. Horton under the civil damage law. There was judgment for defendant, and plaintiff brings error. Affirmed.

[18 S.E. 954]

J. W. Arbuckle, for plaintiff in error.

Henry Gilmer, for defendant in error.

HOLT, J. This is an action of trespass on the case, brought in the circuit court of Greenbrier county on the 29th day of February, 1892, by the plaintiff, Mrs. Virginia Halstead, against defendant, John D. Horton, under section 20 of chapter 32 of the Code, (see Ed. 1891, p. 230.) averring that she was injured in property and means of support in consequence of the intoxication of her husband. John J. Halstead, caused by defendant, on the 27th day of November, 1891, at the town of Ronceverte, by said defendant then and there unlawfully selling and giving him intoxicating liquors, whereby, among other things, defendant caused her husband to lose, squander, and waste the sum of $600, her sole and separate property, then in her husband's possession, laying her damages at $5,000. The case was tried by a jury on the plea of not guilty, and on the 15th of July, 1892, the jury returned a verdict for defendant. Thereupon the plaintiff moved the court to set aside the verdict and grant her a new trial, because the same was contrary to the law and the evidence; also on the ground of newly-discovered evidence, and because the defendant procured the verdict by false evidence, and a fraud upon the jury; but the court overruled the motion, and gave judgment for the defendant, and plaintiff obtained a writ of error. All the evidence is certified, but no instruction was asked by either party, and none was given. During the progress of the trial, after plaintiff had introduced her evidence in chief, and defendant had closed his evidence, plaintiff called John G. Tobin. who stated: "I know John D. Horton. I have seen John J. Halstead." Witness was then asked by plaintiff: "Did you see John J. Halstead, and examine him at the time he was robbed in Ronceverte? If so, did he have any money?" Question objected to by counsel for defendant. Objection sustained, and plaintiff excepted. Plaintiff, by her counsel, then moved the court to continue the case until next morning, (it being about 5 o'clock P. M.,) that plaintiff might get an important witness, (John F. Bowes,) stating he had been regularly summoned, and had gone to Caldwell, about four miles from the courthouse. The court overruled plaintiff's motion, and refused to continue the case, to which ruling of the court the plaintiff excepted, and prayed that her exception be saved to her, which was done.

The law of the case involved in the trial is as follows: "If any person having a...

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