Schellhous v. Ball

By the Court, Sanderson, J. A new trial is sought upon the following grounds : 1. Insufficiency of the evidence; 2. Surprise; and 3. Error in law. I. The real point in controversy, and substantially the only point litigated, was whether the money sued for had been paid by the defendant to the plaintiff’s wife pursuant to the plaintiff’s direction; and upon that question the testimony was conflicting, which is a sufficient answer to the first ground of the motion. II. To entitle a party to a new trial on the ground of surprise the same must be conclusively shown by the affidavits ; and moreover it must appear that the fact or facts from which the surprise resulted had a material bearing upon the case, and that the verdict may be mainly attributed to their effect. (Hartwright v. Badham, 11 Price, 383.) Upon this ground new trials should be granted with great caution, for in many cases it is used as a pretext and a cover for carelessness and [608] inattention rather than as a meritorious ground for relief. A party claiming to have been injured must show that.the surprise has not resulted in any degree from his own fault or negligence, and must in addition claim his relief at the earliest opportunity. If he can relieve himself from his embarrassment in any mode, either by a nonsuit or a continuance, or the introduction of other testimony or otherwise, he must not take the chances of a verdict, but must at once fortify his position by resorting to all available modes of present relief. In the present case a dispute arose between counsel, pending the argument of the case to the jury, as to whether a certain promissory note which had been handed to a certain witness and concerning which the witness had testified, as both admit, was in fact introduced in evidence. Thereupon the presiding Judge was called upon to determine the disputed fact, who decided that the note had been offered in evidence. If this decision was legal surprise and counsel could, as he claims, have shown by competent testimony that the note had in fact no application to the case but was a part of a different transaction, he should then and there have applied to the Court, on the ground of his surprise, for leave to introduce his testimony. It was not too late, in the discretion of the Court, for him to do so, and doubtless, if satisfied that the allegation of surprise was made in good faith, the Court would have permitted it, and there is no pretense that his testimony was not at hand. When during the progress of a trial conditions are found to exist which may amount to legal surprise, it is better for the purposes of justice and the convenience of Courts and litigants to afford relief at once and on the spot, if it can be done; and in the exercise of that sound discretion which the law recognizes as vested in Judges they should not refuse such relief, if attainable under the circumstances, and it is not to be presumed that they will. This discretion however should be exercised with great care and only in cases were the Court is satisfied that the surprise has not resulted from carelessness, for its exercise in such a case would be demoralizing and tend to a relaxation of that vigi [609] lance on the part of counsel which the due and orderly conduct of a trial renders indispensable. What we mean to say is that the relief should be granted on motion at the trial, if practicable, when it would be granted on motion after the trial, and not otherwise. Suppose in the present case the Judge had decided the dispute against the plaintiff. He would have been bound to ask leave to introduce the note then and there, and if denied take a nonsuit, and would not have been allowed to take his chances for a verdict, and if against him claim a new trial. (Live Yankee Company v. Oregon Company, 7 Cal. 40; Turner v. Morrison, 11 Cal. 21.) This rule, when applicable and so far as applicable, is no less obligatory upon the defendant. As already intimated, it is the duty of the Courts to look upon applications for new trials upon the ground of surprise with suspicion, for the reason that from the nature of the case surprise may be often feigned and pretended, and the opposite party be unable to show that such is the case. Hence the party alleging surprise should be required to show it conclusively and by the most satisfactory evidence within his reach. Upon the question whether the note was in fact offered in evidence the defendant presents several affidavits; but upon the question of surprise—upon the question whether, in consequence of the supposed failure of the plaintiff to formally offer the note—the defendant was misled to his prejudice, which is the important and material question, only the affidavit of the defendant is offered. If anybody was deceived or misled it was the attorney of the defendant who managed the case and not the defendant. If the attorney was misled the fact must necessarily be better known to him than defendant, if not known to him only, which last is the most reasonable supposition. In view therefore of the rule requiring the most satisfactory evidence within reach, the affidavit should have been made by the attorney and not the client. The party who must necessarily know the least about them is made to swear to the facts, while he who must necessarily know the [610] truth of the whole matter.swears not at all, which fact may' have tended not a little to cast doubt upon the bona fides of the motion in the judgment of the Court below, and relieves us of any doubts which might have existed otherwise as to the soundness of its decision. III. The testimony of Spooner and the two Franks and the contract between the plaintiff and defendant was properly excluded in view of the issue, to which they appear to have been wholly irrelevant. The only issue about which there was any real contest was as to whether the defendant had paid the money to the plaintiff’s wife. The defendant did not pretend that the money was not due under the contract, but that it had been paid. Order affirmed.