Hannon v. Maxwell , 31 N.J. Eq. 318 ( 1879 )

The opinion of the court was delivered by

Reed, J.

It is apparent that, in the examination of the facts disclosed in this bill, for the purpose of ascertaining the existence of the equitable relief, if any, growing out of them, we must regard the present as a bill for a new trial. Although there is no specific prayer for this remedy, but, instead, a general prayer for relief, and a special prayer that the proceedings upon the judgment upon the replevin bond may be enjoined, yet it is manifest that there is no equitable ground disclosed in the bill which would draw the final adjudication of the matter determined by the first verdict, into this court, and so deprive the judgment creditor, not only of the fruits of his verdict as it stands, but of the privilege of retrying it in the original forum. There is disclosed no defence peculiar to courts of equity and unavailable in the common law tribunals. Everything stated in the bill was as pertinent in the trial at the circuit, as a defence, as it could be in any court, and the question then remains, whether the facts disclosed in the bill are such as to entitle the defeated party to a retrial, so that the verdict may be based upon the new and radically different presentation of testimony, which, the complainant claims, will attend a second trial.

The question extends further than this, however, for it is, whether a court of equity will compel such new trial by-enjoining the further proceedings upon the present judgment. The rule which restricts the interference of courts of equity with verdicts or judgments, in courts of law, has ever been one of'great strictness. Before the courts of common. law exercised the privilege of granting new trials, the court of chancery interfered with reluctance, and the suits of this character in the English equity courts are not numerous. The strictness with which these courts adhered to this rule is apparent from a reference to the few cases where the subject has been considered. Curtis v. Smallridge, 3 Freem. K. B. 175; Tovey v. Young, Prec, in Ch. 193; Richards v. Symes, 2 Atk. 319; Sewel v. Freeston 1 Ch. Cas. 65.

In Bateman v. Willove, 1 Sch. Lef. 201, Lord Redesdale, in the Irish court of chancery, held it to be unconseientious and vexatious to bring into a court of equity a discussion which could have been had at law.

In Smith v. Lowry, 1 Johns. Ch. 320, Chancellor Kent cites these eases with approval, and, in the case he was then considering, refused to grant an injunction to stay proceedings on a judgment at law, applied for on the ground that the défendant was prevented by public business from making due preparation for the trial, and that the defendant had, on the testimony of one witness, whom he had suborned, recovered a verdict for too large damages, and that the supreme court had refused a new trial.

In the case of Floyd v. Jayne, 6 Johns. Ch. 481, Chancellor Kent again says: “Anciently courts of equity exercised a familiar jurisdiction over trials at law, and compelled successful parties to submit to a new trial or be perpetually enjoined from proceeding on his verdict. But this practice has long since gone out of iise, and such a jurisdiction is rarely exercised in modern times, because courts of law are now in the competent and liberal exercise of the power of granting new trials.”

In Larabrie v. Brown, 1 DeG. & J. 204, Lord Justice Turner remarked, that the bill then under consideration was like a bill for a new trial, and that such bills had been filed in former times, but he believed that no such attempt had been made for the last two or three hundred years.

The disuse of such bills results from the fact that, since the relaxation by the common law courts of the rules for the granting of new trials, scarcely any legal ground for a rehearing can now be asserted in the common law tribunals. As courts of law have extended their jurisdiction over this' subject, courts of equity have in this instance withdrawn theirs, in accordance with the principle that, where a court of law can furnish an adequate remedy, equity will not interfere.

Now, on turning to the bill in the present cause, it appears that the grounds upon which this application is made is one of which the circuit court, by its well-established practice, could have taken cognizance. The right to set aside verdicts, for fraud, surprise, or newly-discovered evidence, is constantly and liberally exercised by our own common law tribunals. What, then, in the present instance, is the exceptional character of the case to take it out of the rule that equity will not interfere ? The only ground that can be suggested is, that the evidence was discovered so late that the motion for a new trial could not have been made at the circuit court, because of the existence of a rule that motions for new trials must be made during the term of trial. "Without discussing the force of this rule, whether it precludes the circuit from considering a motion for a new trial based upon the discovery of facts subsequent to the trial term, it is sufficient that the bill does not disclose when the facts here relied on for a new trial came to the knowledge of the defendant.

The bill states that the second action was tried at the September term of the Hudson circuit, in which trial Maxwell, having obtained further testimony in relation to the transactions between the father and son, was enabled to prove certain things, and so gained a verdict. The bill does not disclose when he obtained this information. It does not appear that it was discovered after the expiration of the trial term, but, on the other hand, the inference arising from the statements in the bill is, that it was discovered previous to the second trial. The bill should have clearly disclosed that the application was based upon a matter of which the circuit was powerless to take cognizance. This it fails to do, and in this respect the bill is demurrable.

The second verdict, of course, could not be used as evidence upon the retrial of the replevin suit. It was a verdict on an action between different parties, and could not be pleaded in bar or offered in evidence in the action between Maxwell and the sheriff.

There is another ground upon which I think the bill is defective. Nothing is shown of the nature of the evidence which is alleged to have been newly discovered. The rule as to the character of the newly-discovered evidence which can be successfully presented as a ground for a new trial, is well settled. It must be material, relevant and non-cumulative, and such as could not have been discovered in time for use at the first trial by the exercise of proper care and diligence. The bill should disclose the character of the evidence, so that, from the pleading, the court can determine its materiality and relevancy. The bill should further show that proper diligence was used in the preparation for the first trial, and that the exercise of such diligence failed to discover the testimony, or that, from the character of the testimony or the manner of its subsequent discovery, no proper degree of care would have brought it to light in time for the original trial. This the pleader fails to do. On these grounds, I think the bill is demurrable, and that the decree overruling the demurrer should be reversed, with costs.

Decree unanimously reversed.