Priddy v. DoddPriddy v. Dodd
- Reporters:
- ,
- Before:
- Stuart
Priddy brought replevin against Dodd fоr a horse. Plea, property in the defendant. Replication, that the property was not, at, &c., the property of the defendant, but of the plaintiff, &c., concluding to the country. On this issue the cause was submitted to a jury. Verdict and judgment for the defendant.
A motion for a new trial made at the proper time was overruled. The evidence is all set оut in a bill of exceptions.
The plaintiff rested his motion for a new trial solely on his own affidavit, setting out for cause, &c., that he was taken by surprise by the еvidence of one of the defendant’s witnesses; that he could successfully contradict said witness by one Henry Embank; that Embank lived in Huntington county, and could be readily procurеd in case a new trial was granted, &c. There was no affidavit of Embank as to what he would swear in contradiction of the witness in question, though Embank seems to have been present at the trial; for, in another part of the bill of exceptions, it appears hе was called as a witness for the defendant, and testified that he knew nothing about the matter.
The motion for a new trial was correctly overruled, *85The same point has been decided at, least twicе by this Court. 3 Blackf. 304.—4 Blackf. 308. In the latter case, the Court in substance say: “If the plaintiff finds himself unprepared to meet the defendant’s evidence, it is in his power to suffer a nоnsuit. It would be giving the plaintiff too great an advantage, to permit him to take the chance of a verdict, and when it is lost, to relieve him from its consequences, and give him a chance with another jury, merely because the evidence against him was stronger than he expected.” And again, “ If he wоuld satisfy the Court that the facts could be proved, he should produce thе affidavit of the witnesses themselves to that effect, or account for its absence.” We see no reason why this case should be made an exception to such a salutary rule.
The bill of exceptions raises а further question in relation to the order of argument. Upon the close оf the evidence, the plaintiff’s counsel addressed the jury without any restraint as to time. The opposite counsel declining to reply, the plaintiff сlaimed the right to close, which, on objection being made, the Court refusеd to permit. To this ruling the plaintiff excepts, as an unwarranted invasion of his rights.
Wе cannot so regard it. The right claimed, like many other things incident to the progress of a suit, was a matter very much in the discretion of the Court. From the statе of facts disclosed in the bill of exceptions, we cannot say that thе discretion was abused. The presumption is in favor of its sound exercise. Pеrhaps it was in accordance with one of the rules of the Huntington Circuit Court. If so, it was properly enforced. In the consumption of time in examining witnessеs and arguing causes to the jury, much must necessarily be left to the discretion оf the judge. It is peculiarly within the province of judicial discretion to seе that these operations are not needlessly protracted, tо the delay and detriment of other business on the docket.
There is, moreоver, in this instance, a strong common sense in support of the action of the Court. The *86plaintiff had already an opportunity to present his case to the jury, which the record shows he had embraced fully, and rested. If he did nоt put the jury in possession of his views, it was his own fault. He has but fallen into the snare he had, perhaps, spread for his opponents. It was no invasion of the rights of any one for the Court to hold, that the struggle thus closed could not be rеnewed.
We have been thus particular because the point is warmly рressed by counsel. The other points raised in argument, cannot be regаrded as arising in the record. They were not made below—it is too late tо make them here. The verdict is not an unnatural sequence from the evidence, and should not be disturbed.
Per Curiam.The judgment is affirmed, with costs.