Webb v. Groom

Monell, J. The defendants were arrested and held to bail, for an alleged fraudulent disposition or intended disposition of their property. An attachment for the same cause was also granted. A motion to vacate the order of arrest and attachment was granted upon affidavits disproving any fraudulent intent. A motion for a re-argument of that motion is now made, upon the allegation that certain acts of the defendants, since done, tend to establish the alleged fraud. Re-arguments of motions are only allowed, where it appears that the justice deciding the motion has overlooked, mistaken or misapprehended some material fact; or has decided upon some question of law, not raised or argued by counsel. I am not aware that they have ever been allowed to let in facts not in existence at the time the motion was decided. In the analogous case of motions for new trials [533] on account of newly discovered evidence, the evidence must have existed at the time of the trial, hut its existence was unknown to the party, and could not with reasonable diligence have been discovered. In this case, the acts now sought to be made available were done long after the motions had been decided, and of course could not have had any influence whatever upon the decision ; and it would be opposed by the uniform practice of the court, as well as unsupported by any principle, to open a case already decided' to let in such new facts. The only remedy under the circumstances, is to make a fresh application for the provisional remedies founded upon the new facts. The motion must be denied, with $10 costs.