Huey v. W. Ossipee Mines, Inc.

Decision Date28 June 1923
Docket NumberNo. 1870.,1870.
Citation122 A. 334
PartiesHUEY v. WEST OSSIPEE MINES, Inc.
CourtNew Hampshire Supreme Court

Exceptions from Superior Court, Carroll County; Allen, Judge.

Action by William C. Huey against the West Ossipee Mines, Inc. Judgment for defendant, and plaintiff petitioned for new trial. Verdict set aside, judgment vacated, and new trial ordered, and defendant excepts. Exception sustained.

Petition for a new trial of the action reported in 78 N. H. 237, 99 Atl. 93. Hearing before Allen, J., who found for the plaintiff, vacated the judgment, set the verdict aside, and ordered a new trial. Before filing this petition, the plaintiff brought suit in this county against the defendant's president, Davidson, and in that action took certain depositions. At the present hearing the statements of the plaintiff as to what the witness testified in the depositions were received in evidence, subject to exception.

Henry D. Yeaton, of Rochester, for plaintiff.

Snow & Cooper and C. E. Snow, of Rochester, for defendant.

PEASLEE, J. The question presented is whether a petitioner for a new trial under the statute (P. S. c. 230) may support his claim solely by oral testimony, to the effect that the witnesses he proposes to call at the new trial have stated the facts he wishes to prove. The practice in this state has been otherwise. The production of the new evidence in some testimonial form, and, as coming directly from the witnesses, who, as it is claimed, will repeat it at the new trial, has always been the accepted procedure. The affidavits of the witnesses reciting their knowledge of the facts in question have been received, but even this has been criticized.

"We remark that the affidavits are generally written by counsel, and are more strongly expressed than the depositions of the same witnesses used upon the hearing. Such evidence is less satisfactory than if taken by a disinterested person. As affidavits thus taken cannot be used upon a rehearing, this mode of taking the evidence is attended with delay, expense, and labor, both for the court and counsel. The testimony is to be twice taken and twice considered. We think, therefore, it would be a reasonable and judicious course, in such cases, to apply to the court or a judge for an order that the evidence should be taken before a commissioner, upon notice, as depositions, and that it may be used upon the rehearing." Dennett v. Dennett, 44 N. H. 531, 535, 530 (84 Am. Dec. 97).

In McGinley v. Railroad, 79 N. H. 320, 322, 109 Atl. 715, the new witness had given contradictory affidavits to counsel for the opposing parties, and it is suggested that:

"No reason appears why the witness might not have been examined before the court, and thereby a foundation have been laid for an intelligent estimate of the probable value of his testimony before a jury."

While the reported cases do not in terms decide the question now presented, they do show that the principle that the best evidence that can be had should be produced is to have some application in these proceedings. This is the generally accepted theory elsewhere.

"Moreover, it is not sufficient for the moving party to state in his affidavit what, as he has learned, certain persons know about 'the matter, and how, as he believes, they will testify. He must produce the affidavits of the newly discovered witnesses, as to what they know, and as to what they will testify. The affidavit of the party himself is but hearsay testimony, and cannot be received, unless, for good cause shown, the affidavits of the newly discovered witnesses cannot be obtained. But while the party ought not to be permitted to prevail, unless he furnishes the most convincing evidence that he can readily command, affidavits founded upon hearsay should be received on a question of this kind, if no better ones can be obtained. In applying the above rule, the chief question to be determined is what constitutes a sufficient excuse for the failure to produce the affidavits of the witnesses. The determination of this question seems to be governed by the facts of each particular case." 20 R. C. L. 309, 310; 14 Ann. Cas. 423, note, where the authorities are collected.

In the present proceeding, the hearsay testimony, relating what the witnesses said in giving their depositions in another case, was received against the objection of the defendant, and without any offer of any proof that the depositions or the affidavits of the witnesses could not be obtained. The reason sometimes suggested for the admission of such evidence is that the witnesses cannot be compelled to give affidavits, and therefore there often is no practical way of informing the court of the new evidence, except by the reception of hearsay. Soebel v. Railway, 197 Mass. 46, 83 N. E. 3, 14 Ann. Cas. 421.

But as it is the law in this state that upon a petition for a new trial depositions may be taken (Watkins v. Railroad, 80 N. H. 102, 119 Atl. 206; Dennett v. Dennett, supra) the reasoning has no application here. And the cases upholding the reception of the evidence...

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4 cases
  • Theriault v. Theriault
    • United States
    • New Hampshire Supreme Court
    • November 30, 1962
    ...it does not appear that the Court's denial of the motion and petition was based on this procedural ground. Huey v. West Ossipee Mine, Inc., 81 N.H. 103, 122 A. 334; Morin v. Traveler's Insurance Company, 85 N.H. 471, 160 A. 482; Carpenter v. Carpenter, 78 N.H. 440, 101 A. 628, L.R.A.1917F, ......
  • Croteau v. Harvey & Landers
    • United States
    • New Hampshire Supreme Court
    • November 30, 1954
    ...v. Maine Cent. R. Co., 79 N.H. 320, 321, 109 A. 715; Watkins v. Boston & M. R. R., 80 N.H. 468, 476, 119 A. 206; Huey v. West Ossipee Mine, Inc., 81 N.H. 103, 105, 122 A. 334, cited by the defendants where the petitions for new trials were filed under R.L. c. 398. While it was discretionary......
  • Blocker v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • June 25, 1959
    ...Idaho 145, 258 P.2d 755, 758 (1953); In re Missouri-Kansas Pipe Line Co., 23 Del.Ch. 215, 2 A.2d 273, 278 (1938); Huey v. West Ossipee Mine, 81 N.H. 103, 122 A. 334 (1923); State v. Klasner, 19 N.M. 474, 145 P. 679, 683-684 For these reasons, I dissent from the action of the majority in rev......
  • State v. Long
    • United States
    • New Hampshire Supreme Court
    • February 16, 1939
    ...generally required to present to the trial court the best evidence obtainable in support of the allegations of the motion. Huey v. Company, 81 N.H. 103, 122 A. 334, and cases cited. This the defendant's attorneys have endeavored to do, but the Court has denied their request for the issuance......

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