Harris v. Rupel
| Decision Date | 31 May 1860 |
| Citation | 14 Ind. 171 |
| Parties | Harris v. Rupel |
| Court | Indiana Supreme Court |
From the St. Joseph Circuit Court.
The judgment, as rendered upon the verdict, of the jury, is affirmed. That part of the final order of the Court directing the sale of the property attached, is reversed, at the cost of the appellee.
J. F Miller and W. G. George, for appellant.
J. E McDonald, A. L. Roache and C. L. Dunham, for appellee.
This was a suit by Rupel against Harris, for the seduction of his wife. Denial. Trial by Jury. Verdict and judgment for plaintiff for 5,000 dollars.
After the return of the verdict and before judgment, a motion was made for a new trial, in which the reasons assigned were--
1. Excessive damages.
2. Misconduct, &c., of the plaintiff.
3. That the evidence was insufficient.
4. That it was contrary to law.
5. Newly discovered evidence.
6. Surprise.
Upon the return of the verdict, namely, at two o'clock in the afternoon of October 21, notice was given of the motion for a new trial. On the next day, the reasons were filed, and a motion made that further time be granted to prepare and file affidavits in support of the motion, which was based upon the statements of counsel that, because of other engagements, they had not been enabled to prepare said affidavits.
The motion to postpone was overruled, and the ruling excepted to, as was also the motion for a new trial. No affidavits appear in the record, supporting the motion for a new trial. After judgment, to-wit, on the 28th day of October, the defendant renewed his motion for a new trial, for the same causes assigned on the first motion, and also for additional reasons, namely, for evidence discovered since that motion was determined. Which was also overruled.
The evidence is in the record. No affidavit was necessary to the proper determination of the motion for a new trial, as based upon the first, third and fourth reasons. We can, therefore, examine them.
As to the first; Verdicts, in cases of this character, are seldom disturbed because of the amount found for the plaintiff. That amount depends so much upon the facts and circumstances of each individual case, and the sound legal discretion of the jury, that no very definite rule can be laid down in regard thereto. In the case at bar the plaintiff had been absent for six years in California, leaving his wife and three children in rather indigent circumstances, but under an arrangement to be provided for by her father, who died during the absence of plaintiff; that plaintiff sent back some money; that his wife removed for some time from his small farm into a small house of the defendant; that they appeared to live agreeably before he left; that her character had not, so far as shown, been before that time questioned. Much evidence was introduced tending to show improper intimacy between the defendant and the wife of the plaintiff, in his absence; that soon after his return, defendant and she went to Michigan, where he left her; that her husband went after and brought her back; that she did not remain with him, but went to live in a house of said defendant. Under all these circumstances, the amount which the jury should award as damages, was a question so peculiarly within their province that we cannot disturb the verdict for that reason.
The third cause assigned, for the same reason, cannot prevail. The evidence tends--perhaps it might be said, strongly tends--to sustain the finding upon the question involved, of the guilt of the parties.
As to the fourth reason, no question is made in argument to which it is applicable.
The second, fifth, and sixth reasons, assigned upon the first motion, remain to be disposed of. All those reasons are so assigned as to require to be supported. As before stated, no affidavits were filed. The ruling of the Court upon the motion for a new trial based thereon, was right. The only question in this connection is, whether the Court erred in refusing the postponement, to prepare such affidavits. The verdict was returned at two o'clock; notice of the motion then given; the motion made, and reasons filed the next morning and postponement asked; upon which the statement in the bill of exceptions is, that the defendant "moved the Court for further time to prepare and file affidavits in support thereof, and defendant's counsel stated to the Court that they had been unable, on account of want of time, and by reason of their being engaged on the day previous thereto, to prepare said affidavits." There was really nothing before the Court, in any tangible form, from which the Court was able to determine, or be informed, that it was in the power of the defendant to procure the necessary affidavits to sustain the reasons assigned for a new trial; nor was there anything, except the mere statement of the counsel, excusing their non-production at the time the motion was determined. Something should have been presented to the Court, to go upon the record, in such substantial form as to have justified the Court in acting. The affidavit of the plaintiff upon the one point, and of the counsel upon the other, would have presented one mode of putting the matter upon the record. It is not within the ordinary usages of practice to entertain a second motion for a new trial, after overruling the first. Indeed we do not see very well where litigation would end, if repeated motions should be thus heard, based upon the same reasons of the first. Then, as to the same reasons assigned in each motion, we think it was, so far as this record shows, to say the least, an irregular mode of practice, and the reception of counter-affidavits, upon the same points, was equally so. As that whole proceeding, thus far (no extraordinary circumstances being involved), appears to us as irregular, we will leave it where the Court below did. Upon this second motion, affidavits were produced, to the points which should have been, in that manner, sustained on the first motion; but no sufficient reason is shown for the non-production of the material part of them upon the first motion.
As to the question made upon the evidence discovered after the determination of the former motion for a new trial, three points are presented--first, that plaintiff procured, and improperly influenced, the testimony of his son Charles, a minor of the age of eleven years; second, that the plaintiff mistreated his wife; third, that she was a prostitute before the defendant became...
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