Shehan v. John Malone & Co.

• Decision Date: 31 January 1875
• Court: North Carolina Supreme Court
• Parties: OWEN G. SHEHAN v. JOHN MALONE & CO.

72 N.C. 59

OWEN G. SHEHAN

v.JOHN MALONE & CO.

Supreme Court of North Carolina.

January Term, 1875.

In a petition by the defendants to rehear a case decided in this Court, for the purpose of having a new trial in the Court below, on account of newly discovered testimony, the affidavit set forth, “that one Fennell was the book-??keeper for the defendants in their store; that said books show from the entries made by said Fennell, that the plaintiff bought out of said store,” & c., and “that said books were not allowed to be used in evidence, for the reason that said Fennell was not there to prove them,” &c., and “that they had used every effort to find Fennell, but had failed;” and “that since the trial, they had discovered that he is now living in Chattanooga;” * * * “that the recovery is a hardship,” &c., for that said books which were offered in evidence were excluded,” &c., and that “said books would show,” &c.: Held, to be insufficient to justify the setting aside a former judgment of this Court, and granting a new trial.

In such an affidavit it is not sufficient for the affiants, to state that they had used every means to find out where the witness was, &c.; they ought to have stated what means they did use, and let the Court judge.

( Bledsoe v. Nixon, 69 N. C. Rep. 81, cited and distinguished from this.)

PETITION, by the defendants to re-hear the case between the same parties, decided at the last (June) Term of this Court.

The case is reported in the 71 N. C. Rep. 440, in which the facts are all fully stated. The grounds relied on for a re-hearing are sufficiently set out in the opinion of the Court.

Gaither & Bynum and Folk & Armfield, for the petitioners .

Scott & Caldwell and Furches, contra .

READE, J.

The plaintiff brought his action against the defendants to recover money claimed to be due under a contract. Among other defenses, the defendants set up a counter-claim for goods, wares and merchandise furnished the plaintiff out of their store. It was referred to a referee to state an account between the parties; and in order to prove their counter-claim before the referee, the defendants offered their store books in evidence upon which the goods were charged; and the books were rejected as incompetent evidence. The plaintiff had judgment, and the defendants appealed to this Court, where the judgment was affirmed. 71 N. C. R. 440.

At the present term of this Court, a motion is made in that cause, by the defendants, to re-hear the case in this Court with the view to have the case remanded to the Court below, and a new trial there, upon the ground of ““newly discovered testimony.”

This motion is founded upon an affidavit setting forth, “that one Fennell was the book keeper for the defendants in their store. That said books show from the entries made by said Fennell that the plaintiff bought out of said store,” &c., and “that said books were not allowed to be used in evidence for the reason that said Fennell was not there to prove them,” &c.; and “that they had used every effort to find Fennell, but had failed;” and that since the trial, they have discovered that he is living in Chattanooga, that the recovery is a hardship, “for that said books which were offered in evidence were excluded,” &c.; and “that said books show,” &c., and “this they are now able to show by the said Fennell,” &c.

Applications for new trials for newly discovered testimony, are entertained with great caution. It often happens after a trial, that the losing party discovers some slip or mishap which may have operated to his disadvantage. He sees, or imagines that he sees, where he might have turned the scales if he had not neglected this, or if he had avoided that; and so the temptation is great to strain, if not to invent, a point for another trial. But it...