Steinlein v. Dial
| Decision Date | 01 January 1853 |
| Parties | STEINLEIN v. DIAL. |
| Court | Texas Supreme Court |
A motion for a new trial on the ground of evidence to be produced at another trial must be accompanied by the affidavits of the witnesses by whom it is expected to make the proof, or the absence of their affidavits must be accounted for.
A new trial will not be granted in order to allow the introduction of cumulative evidence.
A motion to dismiss a certiorari for insufficiency in the petition must be made at the return term. There is no similitude in this particular between a petition for a certiorari and an original petition in the District Court. (Note 47.)
Error from Harrison. This suit was instituted before a justice of the peace. The plaintiff had judgment, and the defendant removed the case by certiorari to the District Court. After one mistrial and continuance there was a trial in the District Court, which resulted in a verdict for the original defendant, (plaintiff in the certiorari.) The plaintiff applied for a new trial on the ground, among others, that he was surprised by the testimony of a witness who, he stated, had testified differently upon a former trial of the case. He averred that, had he not been taken by surprise by the testimony, he could have rebutted it and disproved the statements of the witness. The application was supported by the affidavit of the party, but not by that of any witness. He subsequently filed what he denominated an amended motion for a new trial, in which he asked the court to set aside the verdict and dismiss the case for the want of sufficiency in the petition for a certiorari. The court overruled the motion and gave judgment upon the verdict, and the defendant brought a writ of error.
L. S. Wigfall, for plaintiff in error.
M. J. Hall and J. C. & Jo. Everett, for defendant in error.
The application for a new trial was manifestly insufficient. It ought to have been accompanied by the affidavits of the witnesses by whom the party proposed to prove the facts alleged as the ground of his application. (Cotton v. The State, 4 Tex. R., 260.) It is evident, moreover, from the statement of facts, that the new trial was asked to obtain merely cumulative evidence.
The ground mainly relied on for a reversal of the judgment, and the only one which requires particular notice, is the overruling of the motion to set aside the verdict and dismiss the case for the want of sufficiency in the petition for a certiorari.
In the case of O'Brien v. Dunn, it was said that the motion to dismiss ought to be made at the return term of the certiorari. (5 Tex. R., 570.) We entertain no...
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Parker Motor Co. v. Hamilton
...of sufficient bond." The requirement that the motion to dismiss must be made at the first term is mandatory and jurisdictional, Steinlein v. Dial, 10 Tex. 268; Holt v. McCasky, 14 Tex. 229; Brown v. Spohr (Tex. App.) 16 S. W. 866, and the motion must be limited to the grounds specified by s......
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...for defendant in error, cited Todd v. Caldwell, 10 Tex. 236;Wright v. Hays, 10 Tex. 130;Cotton v. The State, 4 Tex. 260; and Sterling v. Dial, 10 Tex. 268.WALKER, J. In the month of September, 1866, R. M. Bonnett brought the two suits, which are herein consolidated, for the use of McDaniel ......
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Reid v. Clarkson
...reason is given for a failure to attach the affidavit of the witness to the motion for new trial. Edrington v. Kiger, 4 Tex. 89; Steinlein v. Dial, 10 Tex. 268; Scranton v. Tilley, 16 Tex. 183; Anderson v. Sutherland, 59 Tex. 409; Moores v. Wills, 69 Tex. 109, 5 S. W. 575; Russell v. Nall, ......
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Campbell v. State
...whether it would probably change the result upon a new trial. Cotton v. The State, 4 Tex. 260;Watts v. Johnson et al. 4 Tex. 311;Steinlein v. Dial, 10 Tex. 268; Scranton v. Tilley, 10 Tex. 183. The application for a new trial in the present case was entirely without merit. The judgment of t......