Selleck v. Head

• Decision Date: 14 June 1904
• Citation: 58 A. 224,77 Conn. 15
• Parties: SELLECK et al. v. HEAD.
• Court: Connecticut Supreme Court

58 A. 224

77 Conn. 15

SELLECK et al.

v. HEAD.

Supreme Court of Errors of Connecticut.

June 14, 1904.

Appeal from Superior Court, Fairfield County; S. A. Robinson, Judge.

Action by Daniel Head against Isaac H. Selleck and others. From an order denying defendants' motion for a new trial after judgment in favor of plaintiff, defendants appeal Affirmed.

Robert E. De Forest and Howard W. Taylor, for appellants.

Samuel Tweedy, for appellee.

TORRANCE, C. J. The present appeal is taken from the action of the trial court in dismissing a petition for a new trial on account of newly discovered evidence, brought by the defendants in the case of Head v. Selleck, 76 Conn. 706, 57 Atl. 281 (memo, case). The defenses in that case, as more fully appears in the report of it, were, in substance, these: (1) That the two judgments sued upon had been paid and satisfied; (2) that Head, the plaintiff in that case, had assigned said judgments to Darius and Benjamin Selleck, who had received from the defendants in that case certain valuable property upon the express trust and agreement that they (said Darius and Benjamin) would pay the two judgments sued upon; that Head was no longer the owner of said judgments, but that said suit was being prosecuted solely for the benefit of said two Sellecks as assignees of said two judgments. The trial court in that case found, in substance, that the judgments sued upon had not been paid; that the two Sellecks had never agreed to pay them, and were not the owners of them, but that they were owned by Head; and that the suit was being prosecuted for his sole benefit. The petition for a new trial sets forth in full all the evidence given in the former case, including certain written entries made by Head in journals kept by him, extending from October, 1884, down to the time of trial. The newly discovered evidence alleged in the petition is a single entry made in one of said journals under date of December 2, 1884, which reads as follows: "After noon had a long session at Bank with the two Sellecks, and passed the judgments I had against the three Sellecks to them and am to prosecute in my name without cost to me." The petition also contains the requisite formal averments usual in such cases. The evidence in the former case, which formed a part of the petition for a new trial, showed that the journal containing the alleged newly discovered entry, with other journals kept by Head, had been produced by him in evidence at the request of the petitioners; that said journals had been impounded and kept in the custody of the court; that the petitioners had had ample opportunity to examine said journals, and had examined and inspected them as fully as they chose to do; and that they had put in evidence numerous entries contained in said journals,...