49 Ind. 332 | Ind. | 1874
This suit was brought by the appellee, John M. Reid, against Jacob G. Chamberlain, William Mathers, Gustavus Ricker, and Edward W. Stephens, on a contract for.
The answer was, 1. The general denial. 2. Payment in full. Reply in denial.
The case was dismissed as to Ricker. Trial by the court, finding for the plaintiff against Chamberlain and Mathers, and on account of bankruptcy, and by consent of the parties, there was finding and judgment for Stephens.
Over a motion for a new trial by Chamberlain and Mathers, there was judgment against them on the finding for fourteen thousand eight hundred dollars.
There is no question raised on the pleadings. Overruling the motion for a new trial presents the only question. On the calling of the cause for trial, the defendants moved for a continuance, and filed and presented the following affidavit in support of the motion:
“ George V. Howk, on behalf of the defendants in this action, makes oath and says that he is one of the attorneys of the defendants herein, and as such has had the management of the defence of this action; that, as affiant believes, the defendants cannot safely try this action without the personal presence and testimony of the defendant William Mathers at such trial; that the said William Mathers acted for and on behalf of the defendants herein during the progress of the work in plaintiff's complaint mentioned, and was, and is now, more fully cognizant of all the matters in controversy in this action than either of his co-defendants; that for this reason his personal presence in court during the progress of the trial, for the purpose of consultation, suggestion, and advice, was and is absolutely indispensable to the defendants' attorneys, and to secure the defendants in a full, fair, and safe trial of this action; that the said William Mathers is also and will be a material witness for the defendants on the trial of this action; that affiant believes the said William Mathers, as such witness, will prove that after the plaintiff had performed his contract as stated in his complaint, and after a final estimate of his said work was made by engineers Charles W. Boyden and John
This affidavit shows, that at the calling of the cause, Mathers, a defendant and witness, was not present, but it does not show that he could not, or would not, be present at and during the trial, or that any diligence had been used by himself or his co-defendants to secure his attendance; nor is there any reason or cause given for his absence. The affidavit was •clearly insufficient. But we will add that the bill of exceptions clearly shows that during the trial, and while the plaintiff’s witnesses were being examined, Mathers was present, and that certain papers were then and there tendered to him in open court.
One of the causes for a new trial was surprise at certain, evidence given, and the following affidavit of the absent witness was filed in support of this cause:
“ The said William Mathers makes oath, and says, that upon the trial of this action at the present term, the defendants were taken by surprise by the evidence of said John M. Reid, and one Roland J. Dukes, who testified as witnesses on behalf of the plaintiff herein; that when the plaintiff’s final estimate to September 30th, 1870, of the work and materials furnished by him under the contract sued on in this action was made by Charles W. Boyden and John M. Bullock, the firm of Chamberlain, Mathers & Co., then composed of the defendants, Chamberlain and Mathers, refused to receive the plaintiff’s .said work in its then unfinished condition, and demanded a remeasurement of said work; that as a compromise of this difference between the plaintiff and Chamberlain, Mathers & Co., it was verbally agreed, in October, 1871, by and between the plaintiff and said firm, that the said firm should receive ■the plaintiff’s said work in its then condition; that the said
The evidence, by which the defendants below claim that they were surprised, was called out from the witnesses of the plaintiff by the defendants on . cross-examination, and was clearly within the law and rules of cross-examination under the issues in the' case.
A party cannot claim that he was surprised by evidence that is legally and properly given under the issues formed in a case. He must be held to know what evidence may be given under the issues formed, and to be prepared to meet it. Pauley v. Short, 41 Ind. 180; Brownlee v. Kenneipp, 41 Ind. 216.
The evidence clearly and fully required the finding and judgment of the court below, and there is no legal cause or reason shown to us by the record why the judgment should be reversed.
The judgment is affirmed, at the costs of the appellants, with five per cent, damages.