Leppar v. Enderton

Davison, J. The complaint states that Leppar, the appellant, who was the defendant, was indebted to Enderton, the plaintiff below, 240 dollars for the use and rent of the canal-boat Kentucky, for one hundred and twenty days, which boat had been rented and furnished to the defendant at his request, &c. . The defendant’s answer led to issues which were submitted to a jury. Verdict in favor of the plaintiff for 20 dollars. Upon the return of the verdict, the defendant moved the Court to render a judgment thereon for the plaintiff, and in favor of the defendant for costs; but pending that motion, the plaintiff moved for a new trial, alleging two causes. His motion was sustained; but the motion of the defendant was overruled. Upon a second trial there was a verdict in favor of the plaintiff for 144 dollars, on which the Court rendered a judgment. The appellant says there was error in sustaining the motion for a new trial. He seeks to reverse the'judgment for that error; and asks this Court to direct the Common [354] Pleas to render a verdict in favor of the appellee for the 20 dollars, arid against him for costs. The canses assigned for a new trial were these: 1. Newly discovered evidence. 2. Surprise at the testimony of one Neff, a witness for the defendant. In support of the motion, the plaintiff produced his own affidavit, wherein he alleged that he was surprised by the testimony of the witness, Neff, who had testified, inter alia, to the plaintiff’s admissions that the defendant had paid 140 dollars towards the use of the boat; that he, plaintiff, could prove, by Peleg Caswell and John Campbell, that said defendant admitted that he had not paid anything on account of the use of the boat; that affiant did not know of such proof until after the trial, although he had used due diligence to obtain all the evidence necessary to sustain his case; and that the newly discovered evidence is true, and required only to rebut the testimony of Neff, &c. The record shows that Peleg Caswell, one of the witnesses named in the affidavit, testified on the trial. The grounds for a new trial are alleged to be insufficient — 1. Because Caswell had been sworn and examined as a witness on the trial. 2. Because there was a failure to produce, or account for the absence of, the affidavits of Caswell and Campbell, that they would swear to the matter set forth in the plaintiff’s affidavit. These grounds have been adjudged sufficient to sustain a refusal to grant a new trial. But we have decided that this Court “will more readily control the discretion of the. Court below in refusing a new trial than in granting it, because the refusal operates as a final adjudication of the rights of the parties; '* '* * that the granting of a new trial is a question of sound discretion, which will not be disturbed, * * unless a flagrant case of injustice is made to appear.” Nagle v. Homberger, 6 Ind. R. 69 (1). Such a case does not appear in the record before us. The second verdict being for 144 dollars, the plaintiff was entitled to a judgment for costs. The ruling of the Common Pleas must be sustained. II. W. Chase, J. A. Wilstach and J. M. La Rue, for the appellant. W. C. Wilson, for the appellee. Per Curiam. — The judgment is affirmed, with 5 per cent. damages and costs. . _ Footnotes [(1)] Oliver v. Pace, 6 Georgia R. 185, and Powers v. Bridges, 1 Greene 235, were cited in that case. See, also, Powell v. Grimes, 8 Ind. R. 252.