Otterness v. Botten

START, C. J. Action on a promissory note for $68.15. The summons was served on the defendant Paaverud only, who answered that he signed the note as surety for his co-defendant Botten; that the note was given for seed wheat, which was warranted to germinate; and that there was a. breach of warranty, in that the wheat was sown, but wholly failed to grow, whereby there was a failure of the consideration of the note. The affirmative allegations of the answer were put in issue by the reply. Verdict for the plaintiff, and the defendant Paaverud appealed from an order denying his motion for a new trial. The basis of the motion was that the appellant’s co-defendant Botten was a necessary and material witness, and that he was taken by surprise by the failure of Botten to appear at the trial. The moving papers tend to establish these facts: As between themselves, Botten was the principal on the note, and Paaverud was his surety. The former resided in South Dakota, fourteen miles from Britton, his post-office address. The appellant, shortly [431] after the summons was served upon him, wrote to Botten, advising him of the fact, who promptly answered by mail that, if the appellant would let him know when the trial would be, he would attend as a witness in his behalf. Accordingly, on June 1, 1899, the appellant wrote to Botten, advising him that the case would come on for trial at Willmar, Minnesota, at the term of court commencing June 26, 1899. He received no reply to this letter, and on June 20, 1899, he caused his attorneys to write to Botten. They did so, telling him that the cause would probably be reached for trial on June 28. Botten did not receive either of the letters, and did not appear at the trial. When the cause was called for trial, the appellant and his attorney believed that Botten would be present at the opening of the court on the following morning, and proceeded to trial without asking for a continuance, so far as the record discloses. On the next morning, the witness failing to appear, the appellant was unable to establish his defense, and the trial court instructed the jury to return a verdict for the plaintiff. The appellant and his attorney relied upon the promise of Botten to attend the trial as a witness. A new trial on the ground of accident or surprise should be-granted only in cases where it is very clear that the moving party has exercised due diligence in the premises. A motion for a new trial on this ground is addressed to the sound discretion of the trial court, and its decision thereon will not be reversed by this court except for an abuse of such discretion. Upon the appellant’s own showing in this case it must be held that the motion was properly denied by the trial court, for it falls far short of establishing any accident or surprise which ordinary prudence could not have guarded against. Conceding, without so deciding, that the appellant, in view of the relation of Botten to the action and'to himself, was justified, in the first instance, in relying on his promise to be present at the trial if advised as to the time (see Mackubin v. Clarkson, 5 Minn. 193 [247]), still the trial court did not abuse its discretion in holding that he was wanting in ordinary prudence. The very fact that the first letter was answered at once, taken in connection with the further fact that twenty days had passed, and no response had been received to the second letter, would naturally suggest to a prudent man that Botten either had not received the second letter, or that [432] he had changed his mind, and that some other means must be resorted to to secure 'his attendance or his deposition,' or a continuance of the case.' Order affirmed.