Tower v. Densmore

• Decision Date: 11 April 1879
• Citation: 1 N.W. 315,8 Neb. 384
• Parties: A. C. TOMER, PLAINTIFF IN ERROR, v. HARVEY B. DENSMORE, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

1 N.W. 315

8 Neb. 384

A. C. TOMER, PLAINTIFF IN ERROR, v. HARVEY B. DENSMORE, DEFENDANT IN ERROR

Supreme Court of Nebraska

April 11, 1879

ERROR from Stanton county district court, the facts appearing in the opinion.

Reversed and remanded.

E. P Weatherby and W. M. Robertson, for plaintiff in error.

It is a good cause for granting a new trial that the party has been surprised by evidence. Sandford Manuf. Co. v Higgins, 14 N.H. 441.

When a party or his counsel is taken by surprise on a material point or circumstance which could not have been anticipated, and when want of skill, care, or attention cannot be justly imputed, and injustice has been done, a new trial should be granted. Door v. Watson, 28 Miss. 383. Patterson v. Ely, 19 Cal. 28. Motions for a new trial on the ground of surprise are addressed to the sound discretion of the court, but when the court refuses the new trial in a case in which surprise is clearly shown, resulting from no fault of the appellant, and he has been injured thereby, the supreme court will reverse the judgment below. Todd v State, 25 Ind. 212. Clark v. Diggs, 6 Iredell (N. C.), 159. Where, after the close of the plaintiff's evidence, the defendant asked, and the court gave, an instruction to the jury which dispensed with evidence on his part, and after plaintiff closed his argument the court gave a different instruction, it was held that the defendant should have been permitted to introduce his evidence, and when he did not that it was error not to grant a new trial. Moreland v. McDermott, 10 Mo. 605. If by any reasonable cause a party has been unable to present the merits of his case to the jury, a new trial should be granted to him. Jones v. Freeman, 1 G. Green, 134.

Crawford & McLaughlin, for defendant in error.

OPINION

MAXWELL, CH. J.

In October, 1877, the defendant in error commenced an action in the district court of Stanton county against the plaintiff herein, to recover damages for the wrongful conversion of certain goods alleged to have been owned by the defendant in error. The plaintiff in error answered the petition of the defendant in error denying that he (the defendant in error) was the owner of said goods; and alleging that said goods came into his possession as assignee in bankruptcy, in the matter of Densmore & Hepper, bankrupts.

On the trial of the cause the jury returned a verdict in favor of the defendant in error for the sum of $ 1375.81, upon which judgment was rendered. The plaintiff in error filed a motion for a new trial, assigning as grounds therefor:

1st. Irregularity in the proceedings of the court.

2d. Irregularity in the proceedings of the jury.

3d. Abuse of discretion by the court in allowing the plaintiff to prove the value of the goods in controversy, or the damages sustained, after the evidence of both parties had been given to the jury, and the argument for the defense closed.

4th. Misconduct of the jury.

5th. Misconduct of the prevailing party.

6th. Excessive damages appearing to have been given, under the influence of passion or prejudice.

7th. That the verdict is not sustained by sufficient evidence.

8th. That the verdict is contrary to law.

9th. On account of newly discovered evidence material to the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial.

10th. On account of accident occurring at the trial of the cause, which ordinary prudence could not have guarded against.

11th. On account of surprise, which ordinary prudence could not have guarded against.

12th. On account of the incompetency of one of the jurors who tried the case.

13th. On account of error of law occurring at the trial, and excepted to by the defendant.

Attached to the motion is the affidavit of the plaintiff in error, that one of the jurors informed him during the progress of the trial that he (the juror) had formed and expressed an opinion in the case, and was not a competent juror. Also that he was taken by surprise by the court re-opening the case, and permitting the defendant in error to prove the value of the goods. Also, the affidavit of E. P. Weatherby, one of the attorneys for plaintiff in error, stating in substance that the defendant in error failed to prove the value of the goods claimed to be converted by the plaintiff in error until after the conclusion of the arguments to the jury, and that in consequence of such omission, which would be fatal to the defendant's case, he had failed to introduce testimony showing that the defendant in error was not the owner of the goods in question, and that the court, in granting the defendant in error leave to prove the value of the goods, restricted the plaintiff in error to testimony in regard to the value, and would not permit him to show that the defendant in error was not the owner of the goods. These affidavits are not denied.

The alleged errors will be taken up in the order of their assignment.

The first error assigned--"Irregularity in the proceedings of the court"--is too general to be of any avail. The motion should point out the irregularity complained of so as to challenge the attention of the judge before whom the case was tried to the act or acts complained of. McCartney v. M. P. R. R., 1 Neb. 398. Wells, Fargo & Co. v. Preston, 3 Neb. 444. Cropsey v. Wiggenhorn, 3 Neb. 108. Creighton v. Newton, 5 Neb. 100. Gibson v. Arnold, 5 Neb. 186. Hosford v. Stone, 6 Neb. 378. Fox v. Meacham, 6 Neb. 530. Brunswick v. McClay, 7 Neb. 137. Lowrie v. France, 7 Neb. 191.

In Lowrie v. France, supra, the assignment was as follows: "Irregularities in the proceedings of the court by which defendants were prevented from having a fair trial." It was held that this assignment was too indefinite to be of any avail, and the reason is that exceptions and objections should present distinctly and specifically the ruling objected to, and not be a mere drag net to enable counsel on a subsequent critical examination to raise points under the objections, which were not thought of or suggested at the time the motion for new trial was heard and determined. A motion for new trial is not a matter of form merely, but is designed as a means of correcting errors which the ablest judge may commit in the hurry of a trial. Proceedings in error are designed to review only particular points of law specially pointed out in the record, and vague, indefinite, or general exceptions will not, as a rule, be considered. Where, however, the errors complained of are apparent from the record, and it is clear that the attention of the trial court was challenged by the motion to the objections complained of, under general assignments of error, they will be considered by this court; but as no error is apparent under this assignment it must be disregarded.

And the same is true of the second assignment.

There was no abuse of discretion in receiving evidence as to the value...