Sultan v. Sherwood, 18 Nev. 454

Sultan v. Sherwood

18 Nev. 454 | Nev. | 1884

By the Court,

Belknap, J.:

This is an action of trover. Plaintiffs claim ownership of certain personal property by bill of sale and possession thereunder from John Kinney, in consideration of an indebtedness existing between them. Defendant justifies the taking as sheriff, under an execution issued upon a moneyed judgment against Kinney; admits a pretended transfer of the property to plaintiffs, but claims it to have been fraudulent as against the execution creditor. Defendant recovered judgment. A new trial was granted on the ground of surprise. From this order defendant has appealed. At the trial, plaintiffs, for the purpose of establishing a consideration for the transfer, introduced in evidence an account between themselves, as merchants, and Kinney, showing the purchase by him of many articles of general t merchandise at various times, advancements of money to his use, interest upon overdue balances, some credits, but a general indebtedness of two thousand and thirty-six dollars and sixty-two cents. The item of interest was eight hundred and seventy-five dollars and one cent. ' This item contains an error against Kinney of about seven hundred dollars.The charge for interest should have been one hundred and forty-four dollars and fifty-four cents, according to the computation made by appellant. The account showing this item was introduced in evidence upon two trials of this cause, but the error, although patent, escaped the attention of the court, counsel, and jury at the first trial. At the second trial, the district court was not advised of the error until after the submission of the cause to the jury, and is of opinion that it did not appear to the jury until after they had retired to deliberate upon the ease. The affidavit of Louis *458Sultan, one of the plaintiffs, states, among other things, that be “Is informed a-nd believes that the only reason which the said jury had and based their said verdict upon, against said plaintiffs, was the fact which was for the first time discovered by the said jury in the jury-room, after the said jury had retired to deliberate upon their verdict, that there was a large mistake in favor of said plaintiffs, in the computation of interest in their (plaintiffs’) account with John Kinney, from whom they purchased the property described in the complaint in said action. And affiant further says that he did not know of such mistake until the testimony in the ease had been closed, and the same was ready to be submitted to the jury, and, therefore, could not have informed his attorneys in relation to the same. And affiant further says that said account was made up on the thirteenth day of June, A. D. 1882, by Louis Jacobs, a sou of one of the plaintiffs, and a graduate of Heald’s Mercantile College, and in whom affiant placed confidence as a correct accountant; and that affiant, being engaged in business at Bristol at the same time, and very busy, accepted the said account as correct, and never examined the same to detect any errors therein; and that if he had known of such mistake before said cause had been submitted to said jury, he could have explained the same so as to show to said jury that neither himself nor Mr. Jacobs, his co-plaintiff, was guilty of any fraud in the transaction.”

Counter-affidavits were presented by defendant raising an issue of fact as to the time when plaintiff Sultan first became aware of the error. The district court is the sole judge of the credibility of evidence upon motions of this ' nature. It determined the controverted question in favor of the plaintiffs, and as there is testimony sustaining the finding we cannot disturb it.

The only matter open for consideration is whether the affidavit of Sultan sets forth a state of facts entitling plaintiffs to a new trial. It was the duty of Sultan to have informed the court aud jury of the error in the computation of interest at the earliest practicable moment after its discovery. A *459party cannot be allowed to take the chances of success, and, upon the rendition of an adverse verdict, obtain a new trial on the ground of surprise. The affidavit states “that he (Sultan) did not know of such mistake until after the testimony in the case had been closed, and the same was ready to be submitted to the jury. ’ ’ The language of the affidavit —that the cause was ready to be submitted to the jury— implies that everything had been done, by way of introduction of evidence, argument of counsel, and instruction by the court, necessary to an understanding of the issues involved ; and that the only act remaining to be performed was to transfer the further consideration of the cause to the-jury. The submission of a cause under such circumstances is a mere momentary act, generally contemporaneous with its preparation for submission. The affidavit bears out the view that no time for deliberation or action elapsed, and states that, because he learned of the error as set forth, plaintiff' “could not have informed his attorneys in relation to the same.” It may well have been, that, learning of the error at the conclusion of the trial, plaintiff did not have a reasonable opportunity to act further in the matter, except upon motion for new trial. It is extraordinary that the mistake should have escaped .the attention of counsel upon each side at both trials. This, however, appears to be the fact; and a matter unknown to the court, and upon which the verdict may have been principally predicated, was not investigated. We think that the ground of surprise, within the meaning of the statute, has been established, and that plaintiffs were not guilty of laches.

The order of the district court is affirmed.