3 Conn. Cir. Ct. 651 | Conn. App. Ct. | 1966
On April 23, 1965, Jacqueline A. Itts instituted a paternity action
In taking the appeal, the defendant did not request a finding and none was made. Therefore, this being a civil action, we consider only error claimed “upon the face of the record.” Practice Book § 957; American Finance Corporation v. Webb, 23 Conn. Sup. 346, 1 Conn. Cir. Ct. 230. Specifically, on this record we consider the allegations of fact in the petition as proved and limit our inquiry to the question whether those allegations support the judgment. Postemski v. Watrous, 151 Conn. 183, 185.
In determining whether to render a judgment granting a new trial, the trial court is vested with a
Taking up the first requirement, we consider whether the court erred in ruling that the evidence that the plaintiff was in New York City on April 10, 1964, is newly discovered evidence. This evidence relates exclusively to the whereabouts of the plaintiff himself on that date. It is information about himself that, prior to trial, he had personal knowl
Turning to the requirement of due diligence, we consider this question, on this record, on the facts pleaded in the complaint and exhibits, notwithstanding the general allegation in the complaint that the plaintiff used due diligence. See Meriden v. Rogers, 111 Conn. 115, 118; White v. Avery, 81 Conn. 325, 328. Due diligence, in connection with a petition for a new trial, means that the petitioner must be “diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new
The second reason alleged by the plaintiff for not discovering the new evidence before trial is that he was “unprepared” to show where he was on April 10, 1964, because the paternity complaint alleged that conception occurred “on April 1, 1964,” and no evidence was introduced to show that conception occurred “on or about April 1, 1964.” Contrary to this allegation, the complaint did allege that the child was begotten “on or about” April 1, 1964, and this, coupled with the allegation- that the child was
Further, the plaintiff himself alleged that “on said trial” it “became and was a material question” whether he begot the child in Glastonbury during the evening of April 10, 1964. When that material issue arose, it became the duty of the plaintiff to obtain and introduce evidence concerning it, but the record does not disclose any attempt by him in the original trial to account for his whereabouts on that day. If the plaintiff was “unprepared” on that issue, it was not because the pleadings or the evidence failed to apprise him of the issue. If he was surprised by the evidence, he should at least have made such a claim at the trial and attempted to obtain a postponement on that ground. “Even granting that the defendant was surprised by such testimony, still he had an opportunity before the trial ended of questioning his . . . [wife] and of searching his mind and his records to ascertain whether or not he was in . . . [Glastonbury] on . . . [April 10, 1964]. Apparently, he did not see fit to do so at that time, nor did he invoke the assistance of the court for additional time, if required.” Eckstein v. Caldwell, 61 R.I. 142, 149. In brief, this claim of the plaintiff that he was “unprepared” affords no legally cognizable justification for not introducing the evidence at the original trial, nor does it lend any support to his claim that he exercised due diligence.
Thus, the essential facts established by the allegations of the petition are that the plaintiff failed to inform his wife of the paternity action and to make inquiry of her concerning his whereabouts on April 10. As a result, he was not prepared to introduce
There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant.
In this opinion Dearington and Levine, Js., concurred.
The file in the origiaal paternity actioa is aot part of the record oa appeal; we have, however, takea judicial notice of it. See McCleave v. Flanagan Co., 115 Conn. 36, 39.
“Sec. 51-262. new trial, rehearing. The circuit court may grant a new trial under the conditions established in section 52-270 [Causes for which new trials may be granted]. . .
An appeal may be taken from a judgment granting a petition for a new trial. Palverari v. Finta, 129 Conn. 38, 41; compare Hoberman v. Lake of Isles, Inc., 138 Conn. 573 (appeal may not be taken from granting motion for new trial).
It is apparent from the memorandum of decision in the original action, which we have consulted to ascertain the testimony available to the court in that action (see Bridgeport Hydraulic Co. v. Sciortino, 138 Conn. 690, 694), that the trial court had compared the appearance of the putative father with that of the child and had given weight to this comparison in arriving at its decision. Where, as in the present case, the decision of the trial court in the original action is based on evidence that cannot be made part of a record, the petition for a new trial should be heard by the judge hearing the original case, for otherwise there is no sound basis for a rational determination of the question whether the new evidence would be likely to produce a different result. Moreover, whenever feasible, petitions for a new trial should be heard by the judge hearing the original ease. See 66 C.J.S., New Trial, § 118 (b); 39 Am. Jur., New Trial, § 178.