Dalton v. Shaffner ( 1889 )

Thompson, J.,

delivered the opinion of the court.

The sole question for decision is whether the court erred in refusing to grant a new trial which the defendants claimed on the ground of surprise. The action was to enforce a mechanics’ lien. The claim of lien, which was put in evidence by the plaintiff, bears date March 5, 1889, and shows that notice of the intention to file the lien was given December 13, 1888. The affidavits in support of the motion for new trial show that this notice was the only one which was given; that in pursuance of it a claim of lien was filed on the twenty-fourth day of December, 1888, which was the only claim of lien of which the defendant Shaffner had knowledge; that he prepared his defense against the lien claimed in the paper of December 24, 1888, and was totally unprepared for trial upon the lien claim subsequently filed, and was greatly surprised at the trial when it was offered in evidence. But the affidavits do not state that he made his surprise known to the court at the time, when the paper of March 5, 1889, was offered in evidence, or at any time before the close of the trial. Indeed it does not even appear that he objected to the paper on any ground when it was offered in evidence.

It is plain from the foregoing statement that the motion for new trial was correctly overruled. “ If a party be surprised by an unforeseen occurrence at' the trial, he should make his misfortune known to the court instantly, and ask for a reasonable postponement to enable him to produce the countervailing proof. If he can relieve himself from his embarrassment by 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.” Bragg v. Moberly, 17 Mo. App. 221; Albert v. Seiler, 31 Mo. App. 257.

The judgment will be accordingly affirmed.

All the judges concur.