Hite v. Lenhart

• Citation: 7 Mo. 22
• Parties: HITE v. LENHART AND OTHERS.
• Decision Date: 31 May 1841
• Court: United States State Supreme Court of Missouri

7 Mo. 22

HITE

v.LENHART AND OTHERS.

Supreme Court of Missouri.

May Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY

CROCKET & GIST, for Appellant. The appellant assigns for error, that the court should have granted a new trial for the following reasons: 1st. On the ground of surprise, and cites in support, 1 J. J. Marsh. R. 319-20; 2 J. J. Marsh. R. 515; 3 Taunton, 484; 4 Chitty's Practice, 59-60; 7 Taunton, 309; 8 Taunton, 730; 1 Blacks. R. 295-8. 2nd. On the ground that the copy of the assignment was improperly rejected by the court. See act of Congress, 1790, approved 26th May, prescribing the mode in which the public acts, records, and judicial proceedings in each State shall be authenticated, &c.

GEYER & DAYTON, for Appellees. It becomes necessary in ascertaining whether the court committed error in refusing a new trial to examine only the two reasons last mentioned, for the counsel for the interpleader must rely solely upon them. As to the first, that the certified copy of the record was improperly excluded from the jury, the interpleader is now, and was on the motion for a new trial, precluded from availing himself of the error of the judge, supposing it was one, for the reason that he took no exception to it at the trial.

Having neglected to take the exception at the proper time, the following authorities will show that the propriety or impropriety of excluding that evidence cannot now be questioned: McGirney v. The Phenix Insurance Company, 1 Wend. R. 86; Whiteside v. Jackson, 1 Wend. 418; Jackson v. Caldwell, 1 Cowen, 638; Shepard et al. v. White, 3 Cowen, 32; Friers v. Jackson, 8 Johns. 495; Lanuse v. Barker, 10 Johns. 312; Davis v. Burns, 1 Mo. R. 364; Bartlett v. Draper et al 3 do. 477; Swearingen v. Newman, 4 do. 455; Withington v. Young, 4 do. 563.; Waldo v. Russell, 5 do. 387.

But the copy was properly excluded. The original should have been produced or accounted for. See 1 Starkie, 327, et seq.; Sess. Laws of Mo. 1838, 41; 5 Mo. R. 903; Leuster, 182. As to the other reason, that the counsel was surprised on the trial by the exclusion of the copy, it may be remarked in the first place--that under the instructions given to the jury, by consent of the counsel on both sides, the interpleader could not have been injured by the exclusion of the copy. The only object in offering this copy must have been to establish the fact, that the interpleader was the assignee of L. B. Clark. Under the instructions, the naked question of fraud was submitted to the jury, in determining which, they were directed to consider the circumstances of the sale from Varnum to Hill, upon the supposition that Hite was the assignee of Clark as represented. The jury therefore passed upon the fact, and found a verdict the same as they would have done had the copy not been excluded.

The interpleader, then, ought not to have a new trial granted him on account of the exclusion of this copy, when the only fact it could possibly have been intended to prove was thus fully conceded by the defendant's counsel before the case was passed upon by the jury. Vide Stewart v. Small, 5 Mo. R. 525.

It will be observed that the affidavit of the counsel, and the only one given, says nothing about the merits of the case. It should have stated distinctly that the interpleader had merits. See Meechum v. Judy, 4 Mo. R. 361; Elliot v. Leake, do. 590. But the affidavit of the counsel in reference to surprise, only shows that he was mistaken in the law, which is no ground for a new trial. Vide Graham's Practice, 508.

The interpleader stood in the relation of plaintiff in the suit, and if testimony important to him were ruled out, he might have taken a non-suit. Graham's Practice, 269, et seq. But a new trial should not be granted on account of the exclusion of evidence, properly or improperly, when the testimony was such as, if admitted, ought not to have changed the verdict. By a review of the testimony in this case, it will be clearly seen the jury could not have justly found a different verdict had the authenticated copy offered, or even the original assignment been given in evidence, and had the assignment been fully before them and they found a different verdict, the court would have been strongly called upon to set it aside as against evidence, and grant a new trial.

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