64 A. 22 | N.H. | 1906
The plaintiffs did not have the legal right to bring the jurors who had given affidavits in opposition to their motion before the trial judge and have them orally examined, even *551
if their testimony would have been competent. The conduct of hearings on motions is largely within the judicial discretion of the trial judge. He may require a motion involving an issue of fact to be heard upon affidavits only, and his ruling will not be set aside unless it is clear that in the particular case he abused his discretion. Strom v. Railway,
In this state it is provided by a rule of court that no motion grounded upon facts that do not appear in the record or papers on file in the case, or that are not agreed to in writing, will be heard by the court, either in support of or in opposition to the motion, unless the facts are verified by affidavit. Rule of Court, No. 48,
In this case the affidavits of the sheriff and the jurors were put in evidence without objection. We are therefore not called upon to decide whether they were competent to be considered on the question raised by the motion. Conceding that they were competent, it was within the discretion of the trial judge to grant the plaintiffs' request to cross-examine the jurors with respect to the statements there made, and how they came to give the affidavits. *552 When the examination is thus limited no legal objection is apparent. The trial judge, however, without exercising his discretion, ruled as a matter of law that the plaintiffs were not entitled to so examine the jurors. This was error.
Case discharged.
All concurred.