Briggs v. Gleason, 27 Vt. 114

Briggs v. Gleason

27 Vt. 114 | Vt. | 1854

*116The opinion of the court was delivered by

Bennett, J.

A new trial in this case is sought upon the ground of new discovered evidence. The petitioner had brought his action against one Alexis Chandler, and the defendants in this petition had been summoned as his trustees; and in a jury trial between the plaintiff and the trustees, they had been found, by a general verdict of the jury, not to be chargeable; and on the trial of the case it seems to have been a material question whether the deed from Chandler to the trustees, was in fact to be treated as a mortgage deed, notwithstanding it was absolute upon its face.

"We think there is no sufficient reason for opening this cause for another trial upon the ground of surprise. Though the trustees had taken the deposition of Chandler, yet the plaintiff must have understood that the trustees were under no obligation to use it on trial; and if they did not use it, most certainly the plaintiffs could not be surprised in not having an opportunity to rebut it, and doubtless the county court were right in rejecting the testimony of Chandler, when offered by the plaintiff, upon the ground of interest, to establish in himself an equity of redemption; and indeed that question was carried to the supreme court at the last term, but, I believe, surrendered without argument.

If a party is surprised on trial, it is much more proper for him to make it a ground for an application for a contiuance of the case, in the sound discretion of the court, than to lay by, and if cast in the suit to seek to open the cause anew by petition for a new trial. And indeed, I should apprehend, it must be a strong case which would induce the court to grant a new trial, where the party neglected, at a proper time, to move for a continuance.

To induce the court to grant a new trial for newly discovered evidence, they should feel assured that injustice has been done, and that a new trial would lead to a different result. This ground for a new trial must rest on the testimony of young Higley and F. Gr. Hill; and in regard to Higley, he has so thoroughly impeached, himself by his counter-deposition taken by the petitionees, that the plaintiff feels constrained to admit that his testimony could have little or no weight with a jury. This ground of the application must rest mainly, if not wholly, on the testimony of Mr. Hill.

It seems that Truman Chittenden, as it appeared upon the trial, *117from his deposition, in 1889, let Chandler have some $280, and took the note of Gleason and Whitcomb for the same, and his deposition, more or less, may tend to show that the note was given for Chandler, and that they held the land as security, but this is no part of the new discovered evidence. The statement of Mr. Hill, who had Mr. Chittenden’s note for collection, that Mr. Gleason, when he wanted to get time upon the note, stated “ that it was not his and Whitcomb’s debt to pay, but that it was given for somebody else,” may have a tendency to prove the deed of Chandler a mortgage ; but it could not be of much account. The conversation was a casual one, and took place some years since, and a slight variation hi its phraseology would take away its whole force. We are to presume that the verdict of the jury was rendered upon a fair balance of testimony; and we can hardly feel any degree of confidence, if the testimony of Mr. Hill had been put in, that it would have changed the result.

Again it appears on this hearing that a motion was made for a new trial, before the county court who tried the cause, for the same reasons which are now urged before us why we should open the case, and that that court denied the motion after a full hearing. Though wo might not regard this decision of the county court, as a bar conclusively; yet it should have very considerable weight in the exercise of a sound discretion. The county court had a more perfect knowledge of the trial than it is possible for us to have, and could more correctly judge of the probable effect of this new discovered evidence upon a second trial than we can. But what must be conclusive against this application, as the the case now stands, is, that it does not appear how the jury found the question which now labors. The verdict being general, that the trustees were not chargeable, it may be that they found the deed a mortgage, and still that the trustees, in equity, had no funds of the principal debtor in their hands.

It is a question of some importance whether tins court, upon common law principles, will grant a new trial on the question whether the trustees should be held chargeable or not. The proceeding against the trustees is collateral to the main issue, and the judgment an interlocutory one; and in the present case, the principal debtor is in no way before the coiu-t, or in any way a party to the proceed*118ings. But we have no occasion to examine this point, and much less express any opinion relative to it. The reasons for denying this petition are, we think, ample, and the petition is dismissed with costs.