White v. Avert
| Decision Date | 11 November 1908 |
| Citation | 81 Conn. 325,70 A. 1065 |
| Court | Connecticut Supreme Court |
| Parties | WHITE v. AVERT. |
Appeal from Superior Court. New London County; Silas A. Robinson, Judge.
Action by Sherwood G. Avery against Charles E. White. Judgment for plaintiff. From an order sustaining a demurrer to defendant's petition for a new trial for newly discovered evidence, he appeals. Affirmed.
George W. Meloney, for appellant.
William H. Shields and Donald G. Perkins, for appellee.
The rules and principles which govern in applications for new trials are well settled in this state, and have been recently and fully set forth. Gannon v. State, 75 Conn. 576, 577, 578, 579, 54 Atl. 199.
The petition in this case avers, that At and up to the time of the trial this plaintiff has used all possible means of determining what the land was which was so claimed by the said Avery upon which it was claimed this plaintiff had so cut said trees, but was unable so to do because the land records of the town of Bozrah, in which town said laud was situated, did not show the title thereto in the said Avery, or what said land was on which said trees were claimed to be cut, but upon trial it was proved by said Avery that said land had been conveyed to him by a deed which had been lost, and had never been recorded, and this was the first time that this plaintiff had any knowledge of said deed, or bad any opportunity of ascertaining how many trees had been cut upon the land in question. The testimony in the former trial and the newly discovered testimony also appear in full in the proceedings for a new trial. The newly discovered evidence upon which the petitioner relies is as follows: "This plaintiff, also S. Arnold Peckham, of Willimantic, Conn., J. Calvin Brown, of Willimantic, Conn., Charles E. Pitcher, civil engineer, of Norwich, Conn., and ——— Pitcher, of Norwich, Conn., together on December 22, 1906, personally inspected the land in question, and in the presence of all said witnesses the said Charles E. Titcher, civil engineer, from information obtained from said lost deed upon the trial, pointed out and showed the exact location of the lines of said land, as claimed by the said Avery, and then and there all said persons on personal inspection counted all trees up to that time cut upon said land, and all said witnesses will testify that on said last named day no more than 241 trees of two inches in dianieter and no more bad been cut on said land within six...
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State v. Hughes
...demurrer is to consider the whole record and give judgment for the party who, on the whole, appears to be entitled to it. White v. Avery, 81 Conn. 325, 328, 70 A. 1065; Palmer v. Des Reis, 136 Conn. 627, 631, 73 A.2d 327. We may properly treat the demurrers in these cases as general ones an......
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Williams v. Commissioner of Correction
...be granted.' " (Emphasis added.) Malaspina v. Itts, 3 Conn.Cir.Ct. 651, 654-55, 223 A.2d 54 (App.Div.1966), quoting White v. Avery, 81 Conn. 325, 328, 70 A. 1065 (1908). No evidence was adduced at the habeas hearing that would permit the habeas court properly to conclude that Aranjo's testi......
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Fraser v. Henninger
...court considers the whole record. Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 551, 324 A.2d 919; White v. Avery, 81 Conn. 325, 328, 70 A. 1065. We are of the opinion that such a statement constitutes a waiver of the municipality's right to assert any defense which it ......
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Reilly v. State
...a new trial will not be granted 'if the new evidence relied upon could have been known with reasonable diligence.' White v. Avery, 81 Conn. 325, 328, 70 A. 1065, 1066; Salinardi v. State, 124 Conn. 670, 672, 2 A.2d 212. Nevertheless, '(t)he question of due diligence is in all cases to be de......