Priddy v. Dodd

• Decision Date: 25 May 1853
• Citation: 4 Ind. 84
• Parties: Priddy v. Dodd
• Court: Indiana Supreme Court

4 Ind. 84

Priddy v. Dodd

Supreme Court of Indiana

May 25, 1853

APPEAL from the Huntington Circuit Court.

The judgment is affirmed, with costs.

D. D Pratt, for the appellant.

J. R Slack, for the appellee.

OPINION

Stuart J.

Priddy brought replevin against Dodd for a horse. Plea, property in the defendant. Replication, that the property was not, at, &c., the property of the defendant, but of the plaintiff, &c., concluding to the country. On this issue the cause was submitted to a jury. Verdict and judgment for the defendant.

A motion for a new trial made at the proper time was overruled. The evidence is all set out in a bill of exceptions.

The plaintiff rested his motion for a new trial solely on his own affidavit, setting out for cause, &c., that he was taken by surprise by the evidence of one of the defendant's witnesses; that he could successfully contradict said witness by one Henry Ewbank; that Ewbank lived in Huntington county, and could be readily procured in case a new trial was granted, &c. There was no affidavit of Ewbank as to what he would swear in contradiction of the witness in question, though Ewbank seems to have been present at the trial; for, in another part of the bill of exceptions, it appears he was called as a witness for the defendant, and testified that he knew nothing about the matter.

The motion for a new trial was correctly overruled. The same point has been decided at least twice by this Court. 3 Blackf. 304.--4 Blackf. 308. In the latter case, the Court in substance say: "If the plaintiff finds himself unprepared to meet the defendant's evidence, it is in his power to suffer a non-suit. It would be giving the plaintiff too great an advantage, to permit him to take the chance of a verdict, and when it is lost, to relieve him from its consequences, and give him a chance with another jury, merely because the evidence against him was stronger than he expected." And again, "If he would satisfy the Court that the facts could be proved, he should produce the affidavit of the witnesses themselves to that effect, or account for its absence." We see no reason why this case should be made an exception to such a salutary rule.

The bill of exceptions raises a further question in relation to the order of argument. Upon the close of the evidence, the plaintiff's counsel addressed the jury without any restraint as to time. The opposite counsel declining to reply, the plaintiff claimed the right to close, which, on objection being made, the Court refused to permit. To this ruling the plaintiff excepts, as an unwarranted invasion of his rights.

We cannot so...