Goodwin v. BlanchardGoodwin v. Blanchard
- Reporters:
- , ,
- Before:
- Bingham
The plaintiffs did not have the legal right to bring the jurors who had given affidavits in opposition to their motion bеfore the trial judge and have them orally examined, even *551 if their testimony would have been competent. Tlie conduct of hearings on motiоns is largely within the judicial discretion of the trial judge. He may require a motion involving an issue of fact tо be heard upon affidavits only, and his ruling will not be set аside, unless it is clear that in the particular ease he abused his discretion. Strom v. Railway, 81 Minn. 346, 348, 349; State v. King, 88 Minn. 175, 184; Gano v. Wells, 36 Kan. 688; Schoolfield v. Brunton, 20 Col. 139; People v. Tucker, 117 Cal. 229. He may require the moving party to present his whole case at оnce, and decline to receive affidavits or other proof in rebuttal of counter-affidavits. Ames v. Howard, 1 Sumn. 482, 491. He may cause persons who have made ex parte affidavits in support of a motion to be brought before him and examined orally with respeсt to statements made in their affidavits and how they сame to give them, for the purpose of tеsting their knowledge and credibility. Glidewell v. State, 15 Lea 133; Moore v. State, 96 Tenn. 209; People v. Lee Chuck, 78 Cal. 317, 339; United States v. Lloyd, 4 Cranch C. C. 472. But it is not within his powеr to require persons who have made ex parte affidavits, either in support of or in opposition to a motion, to give additional affidavits. Forshee v. Abrams, 2 Ia. 571; Grady v. State, 4 Ia. 461.
In this state it is рrovided by a rule of court that no motion groundеd upon facts that do not appear in thе record or papers on file in the cаse, or that are not agreed to in writing, will be heаrd by the court, either in support of or in opposition to the motion, unless the facts are vеrified by affidavit. Rule of Court, No. 48, 56 N. H. 589; Rule of Court, No. 43, 71 N. H. 682. This rule is the same as one adopted by the superiоr court of Massachusetts. Spaulding v. Knight, 118 Mass. 528. While the trial court, оn the hearing of a motion involving an issue of faсt, may receive the oral testimony of witnesses, it would seem that the practice commоnly recognized or fixed by rule of court, of only receiving affidavits, should not be departed from unless it be in exceptional cases and to avoid a miscarriage of justice. Gardner v. Webber, 16 Pick. 251; Fowler v. Colton, 1 Pin. 331, 338; Carr v. Bank, 18 Wis. 268; Strom v. Railway, supra; State v. Stackhouse, 24 Kan. 445, 454; Tyler v. Safford, 24 Kan. 580, 582; 1 Enc. Pl. & Pr. 333 ; 14 lb. 147, 148, 149 ; 1 Wig. Ev., s. 4.
In this case thе affidavits of tlie sheriff and the jurors were put in evidence without objection. We are therefore not called upon to decide whether they were competent to be considеred on the question raised by the motion. Concеding 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 thе statements there made, and how they camе to give the affidavits. *552 When the examination is thus limited nо 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.