Heirs of Griffith v. Eliot

Stayton, Associate Justice. The new trial in this cause was asked upon two grounds. On the trial, the appellants, who sued as the heirs of Israel Griffith, neglected to introduce any proof whatever of their heirship, and at request of the appellees the court instructed the jury that without such proof the verdict should be for the appellees, and it is claimed that this operated such a surprise upon the appellants as entitled them to a new trial. The omission to introduce evidence of heirship, which the motion for new trial shows was on hand and in court at the time the cause was submitted to the jury, seems to have been known to the appellants before the jury retired to consider of their verdict. In such case it would seem that it was the duty of the appellants to ask the court, even in that stage of the case, for permission to reopen the case and introduce the evidence. [336] Cases may exist in which, to prevent a denial of justice, evidence should be received at any time before the jury have retired. Ho such application was made in this case, and, knowing that the evidence would not authorize a verdict in their favor, the appellants should have taken a non-suit and then have asked to set it aside, and if the court had refused to do so, its ruling would have been subject to revision here. In the case of Kilgore v. Jordan, 17 Tex., 346, the parties went to trial, the attorney for the defendant believing that he had in his office a copy of the special laws which he desired to use in evidence in the case, which he afterwards failed to find, and consequently did not introduce, and a new trial was sought upon the ground of surprise. In disposing of that question, Hemphill, C. J., said: “As to the second ground, viz., that of surprise, the defendant, if he really deemed the absence of the acts of the legislature as prejudicial to his defense, should have moved for a continuance, or for a non-suit, with leave to set it aside. It is too late, after taking the chances of a trial, to urge such cause as a ground to reopen the controversy.” The same rule is recognized in Dotson v. Moss, 58 Tex., 152, and in Graham & Waterman on New Trials, 188-190, where cases upon the subject are collected. The motion for new trial stated that the failure to introduce the desired evidence was not discovered “until the case had gone to the jury under the charge of the court.” This does not preclude the idea that the omission was discovered before the jury retired, although after the charge of the court, and in.the argument of the case before this court, it was admitted that such was the case. If the omission had not been known in time to have asked permission to introduce the evidence or to take a non-suit, even then, when no fault of the adverse party is shown, we are not prepared to hold that the court below erred in refusing to grant the new trial, for all parties must use reasonable care and diligence in presenting such evidence as they know to exist, have in their possession, and know is absolutely essential to maintain their action or defense; otherwise there would be no end to litigation. 1 G. & W. on New Trials, 174, 187; King v. Gray, 17 Tex., 72; Gregg v. Bankhead, 22 Tex., 252. The witness Roberts, on account of whose testimony, alleged to be newly discovered, a new trial was asked, testified, as a witness in the case, to facts so nearly connected with, those contained in his affidavit filed, that the judge who tried the cause may have held that due care would have discovered the testimony. If so, even if the testimony was deemed material, the court did not err in refusing [337] to grant the new trial to enable the appellant to have the benefit of his testimony. Some of the same facts were proved by other witnesses, and if his testimony had been introduced as contained in his affidavit, it is highly probable that it would not have changed the result, even if the plaintiffs’ case, in other respects, had been sustained by the evidence. That the appellees’ proof may have been insufficient to show title in Mrs. Eliot, in her own right, cannot affect the case as it now stands. The judgment is affirmed. Affirmed. [Opinion delivered November 16, 1883.] Associate Justice West did not sit in this case.