Hills v. Paul , 116 Me. 12 ( 1917 )

Bird, J.

An action on, the case for damages for alienation of the affections of the wife of the plaintiff. The action was tried at the April (1916) term of the Supreme Judicial Court for the County of Knox and resulted in a verdict for the plaintiff in the sum of $2,142.33. At the same term, the defendant filed the usual general motion for new trial.

A careful reading of the record indicates that the evidence was conflicting, involving the credibility of the witnesses. The case is one especially within the province of the jury and the Court is of the opinion that it is not warranted in concluding that the jury was not justified upon the evidence in reaching its verdict for the plaintiff or that in so doing it was actuated by bias or prejudice, or by sympathy or other improper motive.

Subsequent to the April term, but when does not appear, it may be inferred that defendant made a motion for new trial apparently upon the ground of newly discovered evidence. The motion,.however is not found in the printed case or record. Whether or not it was in writing (Rule XVII) and, if so, whether or not it was verified by affidavit, as required by Rule XVI, we have, therefore, no means of knowing. A motion for new trial on the ground of newly discovered evidence offers no exception to the latter rule. Emmett v. Perry, 100 Maine, 139, 141. The lack of verification is a fatal objection to the motion. Id. Evidence, apparently in support of a motion for new trial upon the ground of newly discovered evidence, was taken out at the term following the trial, but the testimony is not reported by the presiding Justice as required by R. S., (1903), Chap. 84, Sec. 53. Nor is the court of the opinion that a certificate of the presiding Justice reporting the case is rendered unnecessary by Chap. 103 of the Public Laws of 1913.- And if it were, the certificate of the official court stenographer, — "A correct transcript of the foregoing testimony” — falls far short of that provided for in Chap. 103, Public Laws, 1913, which requires that the certificate shall state "that the report furnished by him is a correct transcript of his stenographic notes of the testimony and proceedings at the trial of' the cause.” The words of the statute or their equivalents should be used. This provision for certification of the testimony by the stenographer does not do away with the necessity for a certificate of the presiding Justice reporting the case to the Law Court. It simply relieves him from certifying to the correctness of the transcript of the evidence.

Considering, however, the evidence submitted as newly discovered, as well as may be done in the absence of a motion, it appears doubtful, if it can be deemed newly discovered, while it indicates a lack of due diligence on the part of defendant.

Motion overruled.