State ex rel. Tebbe v. Wightman

• Decision Date: 31 March 1858
• Citation: 27 Mo. 121
• Parties: THE STATE, TO THE USE OF TEBBE, Respondent, v. WIGHTMAN et al., Appellants.
• Court: Missouri Supreme Court

27 Mo. 121

THE STATE, TO THE USE OF TEBBE, Respondent,

v.WIGHTMAN et al., Appellants.

Supreme Court of Missouri.

March Term, 1858.

1. A new trial will not be granted on the ground of surprise where the object in obtaining the same is the introduction of evidence of a character merely cumulative.

Appeal from St. Louis Court of Common Pleas.

T. C. Johnson, for appellants.

I. The court should have given the instructions asked by defendants.

II. The verdict was against the evidence in the case.

III. The court should have granted a new trial on the ground of surprise, as fully disclosed in the affidavit. (2 R. C. 1855, p. 1285, art. 13, §3; 3 Graham & Wat. on New Trials, 875.)

Kribben, for respondent.

RICHARDSON, Judge, delivered the opinion of the court.

The instructions given by the court presented the questions of law in the case fairly to the jury. The plaintiff could stand on his possession until the integrity of his position was assailed, and could rely on the familiar principle of law that the possession of personal property raises the presumption of ownership; and the allegation in the defendant's answer that the plaintiff's possession was fraudulently obtained was insufficient, without evidence, to shift the burden of proof.

Surprise is a ground for granting a new trial, but it is not regarded with favor by the courts. It is the duty of parties, in the preparation of their cases, not only to know what evidence they need, but what their witnesses will most probably prove, and a new trial will not be granted if the surprise is the result of negligence, or could have been avoided by reasonable diligence. (3 Graham & Wat. New Trials, 876.) This is not the case of a party's own witnesses betraying him or the adversary's witnesses swearing falsely, for it is not averred that the defendants' own witness deceived him, or that the plaintiff's witness stated an untruth, but that he omitted, from forgetfulness, to state a fact which was proven by one witness without contradiction, and which the defendant states he could have proved by another, if he had supposed the plaintiff's witness had forgotten it; and that he could have secured the attendance of another witness, if he had not relied on the memory of the plaintiff's witness. If he was willing to go to trial, in the absence of one of his witnesses, relying on the plaintiff's witness to corroborate his own, he ought to have taken some pains to have ascertained beforehand that his recollection was refreshed....