Ragan v. James

7 Kan. 354 | Kan. | 1871

The opinion of the court was delivered by

Kingman, C. J.:

The plaintiffs in error were plaintiffs below. The cause was tried by the court, and judgment awarded plaintiffs, and on motion of defendants a nexo • trial was granted. To reverse the order granting a new trial the plaintiffs bring the cause to this court.

The only ground relied upon in this court to sustain the order of the court below, is surprise, the other alleged causes being abandoned. The surprise consisted in this: Peter "W. Deitseh was the defendant chiefly interested in the result of the trial. He had bought the land in controversy. It was a vital point in the case, whether he knew of plaintiffs’ equitable claim thereto, before he purchased. In other words, whether he was an innocent purchaser, without notice. On the trial one Peck testified that Deitseh came to him and asked him if he knew what claim Coleman Eagan’s heirs had to the land, whereupon the witness told Deitseh that they had a claim to the land, and explained how their claim arose, giving the grounds on which the court decided the cause. This conversation purported to have taken place before Deitseh bought the land, and of course brought home to him the knowledge of the equitable claim of plaintiffs in the land; and it was the only testimony that certainly and definitely did bring this knowledge to him before he purchased. In his motion for a new trial, Deitseh made an affidavit which among many other things stated that he was sick, and unable to attend the trial, and that he could not and did not anticipate the testimony of Peck; that to the best of his knowledge he never knew Peck prior to the date of his purchase, and did not have any such conversation with him as Peck testified to, and that such testimony was a surprise to him which ordinary prudence could not have guarded against, and that he will be able to show upon another trial that he had no knowledge of plaintiffs’ claim. On this affidavit the court below granted a new trial, and this court will not reverse the order. The judge who tried and decided the cause, saw the witness Peck when he testified, had full opportunity to observe his manner and bearing on the witness stand, and was in a better position to form a correct opinion as to the likelihood as to whether his testimony was fabricated, than this court is. The affidavit states that it was false.

It is true that Deitseh had notice by the formation of the issues of what would be attempted to be- proved against him; but he had no reason to suppose it would be done by false testimony. He might well have been willing to have his case tried in his absence on the facts. It does not follow that he was prepared for the testimony of Peck. If it was not true, he could not have anticipated it, and it was well calculated to surprise him. The court which heard all the testimony having ordered a new trial, we are satisfied that justice is not to be thwarted, nor the law perverted thereby. In cases like this no precise rule can be laid down which can always be invoked. The decision of each case must rest somewhat on the discretion of the court where the trial is had : G-ra. & "Wat. on New Trials, 1085 ; and the doing of substantial justice is ever to be kept in view; id., 1086.

We have not overlooked the case of Smith v. Lowry, 1 Johns. Ch. R., 220, referred to by the learned counsel for the plaintiff in error; and we concur with him in considering the facts very similar to the present case. But they were presented under very different circumstances. A court of law where the trial was had, had overruled the motion for a new trial, and the chancellor refers to this fact as one of great influence in determining his decision.

The order of the district court granting a new trial is affirmed.

All the Justices concurring.