Pass v. Pass
| Decision Date | 17 March 1965 |
| Citation | 208 A.2d 753,152 Conn. 508 |
| Court | Connecticut Supreme Court |
| Parties | Edward V. PASS v. Alice M. PASS. Supreme Court of Errors of Connecticut |
Bernard Insler, New Haven, with whom, on the brief, was David E. FitzGerald, Jr., New Haven, for appellant (plaintiff).
M. Lewis Chaplowe, Stratford, for appellee (defendant).
Before KING, C. J., and MURPHY, ALCORN, COMLEY and SHANNON, JJ.
The plaintiff brought a petition for a new trial on the ground of newly discovered evidence pursuant to General Statutes § 52-270. The defendant demurred, and the court sustained the demurrer. The plaintiff did not plead over, and judgment was rendered for the defendant from which the plaintiff appeals.
The petition alleged in substance that the defendant herein had, on March 29, 1962, obtained judgment in a contested divorce action against the plaintiff herein; that on the trial an issue was whether the defendant herein (the plaintiff in the divorce action) was motivated by her affection for another man to testify falsely concerning the claimed intolerable cruelty of the plaintiff herein (the defendant in the divorce action); that since the trial the plaintiff herein has discovered evidence that the defendant herein had made a statement to her psychiatrist contrary to her testimony on this issue at the divorce trial, and evidence that, since the divorce trial, the defendant herein has, on occasion, been seen in the company of the man in question, sometimes displaying affection. It is further alleged that, in view of this evidence, the judgment in the divorce case is unjust and that, if the newly discovered evidence had been offered in that trial, it would have produced a different result. The defendant demurred on the grounds that the claimed newly discovered evidence is cumulative, designed solely to impeach the credibility of a witness, related to incidents subsequent to the divorce judgment, not likely to produce a different result, and in part inadmissible under General Statutes § 52-146a, that the plaintiff failed to exercise due diligence to discover and produce similar evidence at the divorce trial, and that the petition fails to set forth the evidence offered at the trial or the newly discovered evidence in compliance with established practice. The trial court appears to have sustained the demurrer on all grounds.
By demurring, the defendant has assumed the burden of showing that the trial court, upon a hearing of the petition for a new trial, could not, in the exercise of sound discretion, grant it. Link v. State, 114 Conn. 102, 107, 157 A. 867. The trial court is required to test the sufficiency of the demurrer by comparing the evidence at the original trial with the allegations in the petition for a new trial. Lancaster v. Bank of New York, 147 Conn. 566, 579, 164 A.2d 392. The petition did not set forth the relevant evidence produced at the former trial as it should have done. Practice Book, Form No. 398; Hall v. Tice, 86 Conn. 684, 690, 86 A. 560; Gannon v. State, 75 Conn. 576, 578, 54 A. 199. The parties stipulated, however, that the trial court might examine the transcript of the testimony at the former trial and the printed record in an appeal which the plaintiff herein had taken from the divorce judgment and then abandoned. By that stipulation, the defendant, in effect, waived the deficiencies in the petition. The trial court, although it would have been fully justified in refusing to do so, examined the transcript and record and concluded that, under the averments of the petition, a reasonable cause for which a new trial ought to be granted could not be proved according to the usual rules governing new trials. Wildman v. Wildman, 72 Conn. 262, 270, 44 A. 224.
The question before us is whether the trial court abused its discretion in sustaining the demurrer. Lancaster v. Bank of New York, supra; Smith v. State, 141 Conn. 202, 207, 104 A.2d 761; Krooner v. State, 137 Conn. 58, 62, 75 A.2d 51. In considering that question, we do not examine the transcript. It is the duty of the parties to print all material evidence in the appendices to their briefs. Practice Book §§ 645, 721; State v. Pundy, 147 Conn. 7, 9, 156 A.2d 193; Baton v. Potvin, 141 Conn. 198, 200, 104 A.2d 768. The defendant has printed an appendix to her brief, but the plaintiff has...
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...that injustice has been done in the judgment rendered and that the result of a new trial will probably be different. Pass v. Pass, 152 Conn. 508, 512 [208 A.2d 753 (1965) ]." (Internal quotation marks omitted.) Reilly v. State, supra, at 355, 355 A.2d 324. Furthermore, the scope of review o......
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