Maynard v. Cleveland

• Decision Date: 31 October 1885
• Citation: 76 Ga. 52
• Parties: Maynard. vs. Cleveland.
• Court: Georgia Supreme Court

76 Ga. 52

Maynard. vs. Cleveland.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

[This case was argued at the last term, and the decision reserved. Hall, J., being disqualified, Judge Clarke, of the Pataula Circuit, presided in his stead.]

[COPYRIGHT MATERIAL OMITTED].

Continuance. Practice in Superior Court. Witness. Trusts and Trustees. Payment. Fraud. Evidence. Interrogatories. Before Judge Stewart. Monroe Superior Court. August Term, 1884.

Reported in the decision.

W. D. Stone; Berner & Turner; T. B. Cabaniss; John I. Hall, for plaintiff in error.

Boynton & Hammond; Allen & Tisinger; J. A. Hunt, for defendant Clarke, Judge.

At the trial, defendant moved for a continuance for the want of, and in order to obtain, the testimony of one Brantly. By him he desired and expected to prove that, in witness's presence, Wilde C. Cleveland had actually paid to him $500. Defendant had all along known that Brantly was present at the transaction, and that he lived out of the county. But, although the case had been in court several years, he had not sued out his depositions, nor engaged him to attend, nor even consulted him on the subject. As an excuse for this apparent negligence, he made the following showing: Defendant's counsel stated that, at the preceding term, he had heard that complainant expected to prove by Wilde C. Cleveland that the latter did not, in fact, pay to defendant the $500 for which defendant had given him a receipt, Thereupon, he called on said Cleveland to know what his testimony would be on that point. W. C. Cleveland replied that, to the best of his recollection, defendant's statement was correct. Defendant himself swore that said Cleveland had told him that his (defendant's) statement of the matter was correct; and also testified that said Cleveland and said Brantly were the only persons present at the transaction. Both defendant and his counsel swore that they had no intimation of any change in W. C. Cleveland's mind on that point until the evening preceding the trial, when they discovered in depositions executed that afternoon Cleveland's contrary evidence. Defendant swore that he was misled by this course of W. C. Cleveland (who was brother to complainant) into the belief that his own statement would be confirmed by that of W. C. Cleveland, and contradicted by nobody, and therefore did not deem it needful to procure Brantly's testimony. He also exhibited a postal card received from said Cleveland as follows:

" Dear Sir—I promised Judge Hall " (who was and is defendant's counsel) "at your last court to come over to Forsyth during this term. He requested me so to do; and while I hope sincerely thatyou will neither need me or sustain any loss, yet I am willing to do anything for you, and will be over Monday night or Tuesday morning, and desire to see you and Judge Hall together. I am exceedingly sorry that you are troubled in this suit as you are, and truly hope that you will come out victorious in toto.

February 22, 1881.Wilde C. Cleveland."

The case was called Thursday, the 28th of February. Cleveland had come as promised, but had not apprised defendant or his counsel of any change in his mind, and having sudden occasion to leave the county on Wednesday afternoon, by consent, his depositions were taken at the instance of complainant, Immediately upon discovering what said Cleveland had sworn, every effort practicable was made to get Brantly there. It was ascertained that he was somewhere abroad, traveling in the interest of a Macon mercantile house, and could not be found. Defendant swore that he did not ask the continuance for delay, but in order to get Brantly's testimony. The court overruled the motion.

It was not disputed below, or here, that the testimony of Brantly was highly material. The court placed its judgment on the proposition of law, that as the misleading of the defendant was not done by complainant or his counsel, a continuance could not be allowed. This court has repeatedly held that continuances are in the discretion of the court, and that, when refused, unless there is an abuse of discretion, this court will not interfere. But where it plainly appears that the court below acted on an erroneous notion of the law, and that without that error, the showing would have been satisfactory, and that in consequence of the refusal of the continuance the party has suffered a serious disadvantage, we hold that a tribunal for the correction of errors of law has distinct ground for reviewing the decision.

That defendant suffered a serious disadvantage is clear. He and Wilde C. Cleveland were both parties to the transaction under inquiry. Their testimony conflicted on the precise point. Brantly, as appears by his affidavit in sup-port of the motion for a new trial, would have sworn positively to seeing W. C. Cleveland actually pay over a large roll of money to defendant, at the time and place referred to, when said Cleveland denied that any money passed. Who can say that this would not have turned the scales in the hands of the jury in favor of defendant? But it is claimed that it has been held that the absence of cumulative evidence is no ground for a continuance; and that if a party has one witness present to testify to the same point, he cannot continue to get another. Surely, where the only witness present to testify to the point is a party at interest, and where the other party contradicts him, it cannot be the iron rule of the law that he may not have needful time and fair opportunity to bring in disinterested testimony to settle the dispute. It cannot be the policy of the law, which discourages an unnecessary and expensive array of witnesses to one point, to encourage parties to rely on their own contradicted statements.

In 5 Ga., 80, it is held, " It would be no reply to his want of diligence that he and his counsel did not think the testimony would be needed in the cause until it was on trial." That was a suit against indorsers of a bill of exchange, who, by the well-settled common law, were entitled to demand and notice. The bank cashier, who made the demand and served the notices, though residing in Columbus, where the trial occurred, had not been subpoenaed, nor even requested to attend. When the cause was being tried, the cashier could not be found. For want of this indispensable part of the plaintiff's case, he was non-suited. On his motion for a new trial, we are not surprised that the court should hold the language above cited.

The case cited by defendant in error in 23 Ga., 613, has for a head-note, " A party is not entitled to a continuance on the ground of the absence of testimony, unless he has taken some steps to procure that testimony." But the showing set forth that defendant had "failed totake the witness\'s depositions, because he expected the witness to be present at the trial." Here was a plain case of laches.

In 55 Ga, 21, during the trial, defendant moved to continue because he was surprised at the testimony of plaintiff's witness, and desired to procure contradictory evidence. There was no diligence in trying to learn what the plaintiff's witness would say, no authorized reliance on his favorable testimony, no misleading: Held, that there was no legal surprise at the testimony of his adver sary.

In King vs. The State, 21 67a., 221., the defendant, indicted for ass Alt with intent to murder, claimed surprise because the prosecutor testified to his guilt, and asked a new trial in order to get the evidence of two witnesses, whom he all along knew to have been present at the difficulty, but had not summoned, because he did anticipate his need of them. He was not misled by anybody. Such surprise was manifestly entitled to no favor, and received none.

Susan Eberhart. convicted of murder, asked a new trial because a continuance had not been allowed her. Her grounds were, first, that owing to the recency of the homicide, and her arrest, and the public excitement against her, she could not safely go to trial; second, her counsel had not had sufficient time to prepare her defence. The first ground was mere matter of opinion, and obviously was better left to the discretion of the presiding judge than to a distant reviewing tribunal, who could not so well know the state of the public feeling. The latter ground showed no particular, either as to fact or law, wherein the counsel could not be prepared. This, too, was rightly left to the discretion of the court, where the counsel were well known In that case, the Supreme Court held that, as there was no abuse of discretion apparent, a new trial would not be granted.

None of these decisions seem at all in the way of anew trial in the case at bar. In Wilson vs. Brandon & Shannon, 8 Ga., 136, it was ruled that " where, on the trial of a cause, a witness, from mistake, failed to prove a necessary fact, to make out the defence to an action, the witness having previously assured the defendant that he could and would do so, whereby the defendant was prevented from procuring other evidence to prove the same fact, which it would have been in his power to do; and a recovery was had in consequence of such mistake, both on the part of the witness and the defendant: Held, that such mistake operated as a surprise on the defendant, and that a new trial should be granted."

The case at bar is claimed to be distinguished from that last cited, because the misleading witness here was not the defendant's, on whom he had a right to rely, but the complainant's, on whom he was not authorized to rely. Can it be possible that this makes any difference? When W. C. Cleveland was summoned, or examined, as a witness at complainant's instance, did that give complainant any exclusive property in him or his evidence, so that defend ant might not consult his knowledge of the facts, and rely upon his statements as to his evidence? Nothing is more common than for both sides to subpoena the same witness. His testimony may be indispensable to both....