Hart v. Brainerd

• Decision Date: 05 June 1896
• Court: Connecticut Supreme Court
• Parties: HART v. BRAINERD et al.

35 A. 776

68 Conn. 50

HART

v. BRAINERD et al.

Supreme Court of Errors of Connecticut.

June 5, 1896.

Appeal from superior court, Middlesex county; Shumway, Judge.

Petition by Emily C. Hart against Frank Brainerd and others for new trial for newly-discovered evidence. Demurrer to petition was sustained, and petitioner appeals. Affirmed.

William S. Case, for appellant.

Charles E. Gross, for appellees.

TORRANCE, J. This is a petition for a new trial on account of newly-discovered evidence in the case of Hart's Appeal, reported in 63 Conn. 575. The petition alleges, in substance, that in the trial of that case it was a material question whether Erastus Brainerd did in fact execute the instrument offered as his will, which purported to have been executed in New York City on the 20th of August, 1887, and whether he was in fact in New York City on the 18th, 19th, and 20th days of August of that year; that the exhibits annexed to the petition contained substantially all the evidence offered in the case; that since said trial the plaintiff had discovered material evidence in her favor, which she failed and was unable to discover before or during the trial, "although she used all reasonable diligence in endeavoring to find testimony in her favor"; and that the verdict and judgment against her in said case are unjust. The petition then sets out the newly-discovered evidence. That evidence consists solely of the testimony of two sisters, formerly servants in the family of the plaintiff, who, it is alleged, will testify, in substance, that they were in the service of the plaintiff, and inmates of her house, in 1887; that they spent the month of August of that year at the residence of Erastus Brainerd, in Portland, in this state, with the present plaintiff; that Mr. Brainerd was at his home in Portland all day of the 20th of August, 1887, and paid to one of the new witnesses her wages on that day about 1 o'clock in the afternoon, at the request of the present plaintiff; and had been continuously at home for some days immediately prior thereto. The defendants demurred to the petition on several grounds, the substance of which may be stated as follows: The evidence is not newly discovered. It could have been discovered before the former trial by the use of due diligence. It fails to make it clear that injustice was in fact done at the former trial. It is not alleged, and does not appear, that the testator "could not have been both in Portland and New York on one and the same day." The evidence is merely cumulative in its character, and might be met by other and opposite cumulative evidence on the part of the defendants. It is not sufficient to show that, if a new trial were granted, a different result would be produced. The superior court sustained the demurrer, and rendered judgment for the defendants.

The record does not show whether the demurrer was...