37 Conn. 563 | Conn. | 1871
This is a petition for a new trial on the ground of newly-discovered evidence, addressed to the Court of Common Pleas, which tried the case. The petition is sufficiently formal, and is to be governed by the rules of law applicable to the determination of petitions of that character. The court found the facts alleged to be true, but held them insufficient in the law. In order to decide whether the judge erred in so holding, we must look at the legal requisites of such a petition and see if the facts found brought the case within them.
First, it must be averred in the petition, and made to appear, that the additional evidence is newly-discovered.
Second, that it is material.
Third, that the witnesses will testify to it.
Fourth, that it could not have been obtained and produced at the trial by the use of due diligence.
These requisites are averred, and sufficiently covered by the finding of the court.
But’it must further appear:—
Fifth, that the evidence is not offered to prove a new defence, or let the party into a defence of which he had knowledge at the trial. Lester v. The State, 11 Conn., 415.
Seventh, that the evidence is not cumulative. 1 Swift Dig., 787.
Eighth, that it makes it clearly apparent that injustice has been done, Norwich & Worcester R. R. Co. v. Cahill, 18 Conn., 484.
Ninth, that the new evidence is “ sufficient to turn the cause in favor of the applicant; ” 1 Swift Dig., 787; and show that “ if a new trial were granted a different result would be produced.” 18 Conn., 484.
Such are the legal rules by which a court must be governed in disposing of such an application for a new trial, and a petition which does not show such a case is insufficient in the law and demurrable as such.
We are satisfied that the newly-discovered evidence was not offered to prove a strictly new defence, nor claimed in order to impeach a witness; and that it was not cumulative within the rule adopted in Waller v. Graves, 20 Conn., 210. But we are not satisfied that it is clearly apparent upon the face of the petition that injustice has been done, or that the newly-discovered evidence was sufficient to turn the cause in favor, of the applicant or to produce a different result. And this, for two reasons. 1st. The warranty found by the court below, was found upon what was said between the parties in the market, at the time when the money was paid. The declarations there made, from which the warranty was implied, were sworn to by the plaintiff and another witness. The defendant did not directly deny the making of those declarations, nor offer .any other witness to prove that they were not made. The fact that they were made was therefore proved by a clear and sufficient preponderance of evidence. The newly-discovered evidence does not impair that preponderance. It does not relate to what took place in the market and was not admissible to contradict the Platts. It was only admissible and could only be operative to show that Parsons said, outside of the market, that he would not warrant. But that does not prove the fact found that he did warrant in the
But this case is not properly before us, and although heard upon its merits without objection, it is our duty to dismiss it. It has been settled by a long course of decisions in this state, that a petition for a new trial being an application to the discretion of the court, a refusal to grant it is not the subject of error. The question was unanimously decided by this court in 1823, in White v. Trinity Church, 5 Conn., 187, being the only question in the case. There had been a series of decisions to the same effect prior to that, commencing with Kimball v. Cady, Kirby, 41, and there have been at least three since that time, namely, Magill v. Lyman, 6 Conn., 59, Lester v. The State, 11 Conn., 415, and Norwich & Worcester R. R. Co. v. Cahill, 18 Conn., 484.
But it is said, and seems to have been conceded, that the
There is no error in the record.
. In this opinion the other judges concurred.