28 Wash. 139 | Wash. | 1902
The opinion of the court was delivered by
— The appellant, as trustee in bankruptcy of J. D. Lefevre, a bankrupt, instituted this action against the respondent. It is alleged that at the time of his election as such trustee the appellant became entitled to the possession of two promissory notes, for $1,000 each, which were the property of said Lefevre a.t and prior to the time he was adjudicated a bankrupt. It is further alleged that said notes were at and before the time of the commencement of this action in the possession of respondent; that, while they were so in respondent’s possession, appellant demanded of it the return of said notes, which was refused; and that respondent now wrongfully detains the same. The value of the notes is alleged to' he the full sum of $2,000, and judgment is demanded for the return of the notes, or, if a return cannot be had, for the sum of $2,000 and costs. Respondent’s answer alleges that at the time of the commencement of this action it had and now has in its possession two promissory notes bearing date March 25, 1899, each for the sum of $1,000, payable to the order of James H. Misner, and signed by T. II. Monk and Miranda Monk (presumably the same notes mentioned in the complaint); that each of said notes was, prior to the 29th day of January, 1900, for a valuable consideration, and before the maturity thereof, indorsed and transferred to one W. J. Fleming, who- is now the bona fide •owner and is entitled to the immediate possession of each of the said notes; that thereafter, and prior to the com
The only error assigned is that the court set aside the verdict of the jury and granted a new trial. The grounds urged upon the motion for new trial were accident and surprise which ordinary prudence could not have guarded against, and newly discovered evidence material for the defendant, which it could not, with reasonable diligence, have discovered and produced at the trial.
At'the trial the appellant introduced in evidence, as a part of his case, the deposition of W. J. Fleming, which deposition had been taken at the instance of respondent, at Montreal, Canada. The purpose of its introduction was stated by appellant’s counsel to be -that, inasmuch as said Fleming is the real party in interest in this cause, the offer of the deposition was made as the admission and statements of the party. ISTo objection being made, the deposition was then read in evidence. In the caption of the deposition it was recited that said Fleming resided at “Pittsburg”, Massachusetts, and that his place of business was at “Pittsburg”, Massachusetts. The certificate of-the notary public before whom the deposition was taken states that the deposition was carefully read to the witness by the notary, and that, after having heard read the deposition, the witness signed the same in his presence. The statement in regard to the residence of the witness does not appear’ as an answer to. an interrogatory, but is included in the general recital or preamble preceding the
Whatever statements may have been made by appellant’s counsel in his argument to the jury, a copy of which appears in the record, it seems to us the jury must have seen that he was in no position to dispute the identity of Fleming as the man who gave the deposition, for the reason that the evidence showed that appellant was present by counsel at the taking of the deposition, and, not having then
Turning now to the question of accident and surprise and newly discovered evidence, it. will be remembered that in due time before the trial appellant had, by written interrogatories, inquired of respondent for the residence and post-office address of Fleming. Respondent then knew that Fleming’s testimony was to be produced at the trial, and that, for some purpose best known to appellant, the place of his residence had been asked by appellant in a formal manner, as authorized by law. It must then have been apparent to respondent that the matter of residence was regarded by appellant as material for some reason. Respondent did not then know the place of residence, and made no effort thereafter,, before the trial, to inform itself upon that subject. It had theretofore caused the deposition of Fleming to be taken and filed, and was chargeable with knowledge of what his deposition contained upon that subject. The employee of respondent’s counsel who had charge of the preparation of the case for trial already had
.It is further urged that the court, erred in-its instructions to the jury, in that., as alleged, it practically sub
It is contended that the granting of a motion for a new trial rests in the sound discretion ofv the trial court, and that, since its opportunity for knowing the environment of the trial is much better than that of the appellate court, the order should not be disturbed. The order is, however, made an appealable one, under our statute, and it therefore becomes the duty of this court to consider it as it appears hera It is a recognized principle that, when an application for a new trial on the ground of accident or surprise is made, it is not only necessary that the party should have been surprised, but that it was not the- consequence of neglect or inattention on the part of the party surprised; also, that he used all reasonable efforts to overcome the evidence which worked the surprise, or that it was not within his power to have done.so by the employment of reasonable diligence. Chicago & Great Eastern Ry. Co. v. Vosburgh, 45 Ill. 311; Schellhous v. Ball, 29 Cal. 605; Gaines v. White, 1 S. D. 434 (47 N. W. 524) ; Borderre v. Den, 106 Cal. 594 (39 Pac. 946); Crawford v. Georgia Pac. Ry. Co., 86 Ga. 5 (12 S. E. 176); Pincus v. Puget Sound Brewing Co., 18 Wash. 108 (50 Pac. 930).
In Gaines v. White, supra, at page 527 (1 S. D. 447), the court said:
“But he can never, after having submitted his cause, on finding that the verdict or judgment is against him, become surprised at what had previously happened during the trial and ask the court- to relieve him from his own error, mistake, or omission.”
“But in any event,, if this testimony was so essential to the defendant’s case that it would warrant the granting of a new trial, then it was essential enough to have warranted the granting of a non-suit or of a continuance. If the matter had been presented to- the court when it was discovered that the desired evidence could not be obtained, a motion for continuance should have been made and the same court that granted the motion to* set aside the verdict would undoubtedly have granted a motion for a continuance, on terms or otherwise. And in any event, the plaintiff would have been entitled to a non-suit. If he was surprised on the trial of his case, his remedy was as we have indicated; if he was not, he simply took chances on obtaining a verdict from the jury on the testimony which he had at hand; and having elected to submit his case to the jury on such testimony, he cannot now be heard to complain that the testimony was insufficient, and that he could, on another trial, produce more and better testimony. If this practice were tolerated, no reliance could be placed upon a judgment, and it would become a favorite practice with litigants to obtain a second trial, if unfortunate in the first, by neglecting to procure all the testimony which might originally have been procured in the case”
In view of what has heretofore been said, we think the respondent did not bring itself within the rule above stated, and that the court erred in granting the motion for a new trial.
The judgment is reversed, and the cause remanded, with instructions to the court below to overrule the motion for new trial.
Rbavis, O. J., and Anders and Mount, JJ\, concur.