Huey v. W. Ossipee Mines, Inc.
Decision Date | 28 June 1923 |
Docket Number | No. 1870.,1870. |
Citation | 122 A. 334 |
Parties | HUEY v. WEST OSSIPEE MINES, Inc. |
Court | New 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.
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.
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.
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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