Hemenwat v. Lincoln
| Decision Date | 09 October 1909 |
| Citation | 82 Vt. 465,73 A. 1073 |
| Court | Vermont Supreme Court |
| Parties | HEMENWAT v. LINCOLN. |
Petition by Nancy A. Hemenway against Mary E. Lincoln for a new trial on the ground of surprise and newly discovered evidence, brought to Supreme Court and heard on pleadings and affidavits. Dismissed.
For former opinion, see 80 Vt 530, 69 Atl. 153.
Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.
Gibson & Waterman, for petitioner.
Herbert Barber and Frank Barber, for petitionee.
This is a petition for a new trial on the ground of surprise and newly discovered evidence. The first ground is not available to the petitioner; for if, as she says, she was surprised to have Miss Lincoln deny that a note was given for the original loan, she should have applied for a continuance, that she might have had time and opportunity to prepare for this unexpected issue. This denial came early in the trial, and, having chosen to go along without requesting a continuance, the petitioner is bound by her election, there being nothing in the case to take it out of the general rule. Taylor v. St. Clair, 79 Vt. 536, 65 Atl. 655; Briggs v. Gleason, 27 Vt. 114; Coolidge v. Taylor, 79 Vt. 528, 65 Atl. 582; State v. White, 70 Vt. 225, 39 Atl. 1085.
Nor can the petitioner prevail on the second ground. The petition contains no allegation of due diligence—sets forth no facts from which an inference to that effect can be drawn. The petitioner says, in effect, that since the affirmance of the judgment in Supreme Court she "has been diligent in her search for new evidence." This is not only insufficient as an allegation of fact (May v. State, 77 Vt. 330, 60 Atl. 1; Comoli v. State, 78 Vt. 423, 63 Atl. 186), but it relates to what took place since the trial; while the real question is: What effort did the petitioner make before the trial to put herself in possession of the evidence necessary to maintain her defense? She says that she was unable to produce evidence sufficient to substantiate her claim, but does not specify the reason. Such a petition must be supported by the affidavit of the petitioner that the evidence is newly discovered—that is to say, that the petitioner had no knowledge of it before or at the trial (Bradish v. State, 35 Vt. 452)—and ordinarily must have attached to it the affidavit of counsel that they, too, were ignorant of it at the trial (Reynolds v. Hassam, 80 Vt. 501, 68 Atl. 645; Taft v. Taft, 82 Vt. 64, 71 Atl. 831).
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State v. Hathorn
...to have been newly discovered. Walsh v. Cole, 97 Vt. 459, 460, 123 A. 850; Webb v. State, 90 Vt. 65, 67, 96 A. 599; Hemmenway v. Lincoln, 82 Vt. 465, 73 A. 1073; Jones v. Sennott, 57 Vt. 355, 357, 358; Earl v. Griffith, 52 Vt. 415, 421; Quinn v. Halbert, 52 Vt. 353, 362, 363; Morgan v. Hous......
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State v. Clarence Hathorn
... ... discovered. Walsh v. Cole, 97 Vt. 459, 460, ... 123 A. 850; Webb v. State, 90 Vt. 65, 67, ... 96 A. 599; Hemenway v. Lincoln, 82 Vt. 465, ... 73 A. 1073; Jones v. Sennott, 57 Vt. 355, ... 357, 358; Earl v. Griffith, 52 Vt. 415, ... 421; Quinn v. Halbert, 52 Vt. 353, 362, ... ...
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Kaeser v. Town of Starksboro
...this petition, but in Quigley v. Wiley, 108 Vt. 173, 183 A. 339, a motion to dismiss was availed of in a similar case. In Hemmenway v. Lincoln, 82 Vt. 465, 73 A. 1073, a similar case was heard on the pleadings, and in Flint v. Holman, 82 Vt. 513, 74 A. 232, the hearing was on the affidavits......
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John M. Bradley v. Clarence B. Kelley & Trustee
... ... 1085; ... Coolidge v. Taylor , 79 Vt. 528, 65 A. 582; ... Taylor v. St. Clair , 79 Vt. 536, 65 A. 655; ... and Hemmenway v. Lincoln , 82 Vt. 465, 73 A ... The ... defendant, in making this contention, overlooks the fact that ... on the question of due ... ...