Howell v. Cheatham ( 1812 )

Oveeton, J.

delivered the following opinion of the Court: —

This Court cannot say that the Circuit Court erred on either of the grounds taken by the counsel for the appellant. To authorize this Court to control the discretional exercise of power by the inferior Court, in refusing or granting a new trial, it should be clear to us that it erred. The affidavit which was filed respecting the record from Virginia, does not sufficiently show that there was surprise.

The authentication of records from other States is so clearly defined that no counsel could be mistaken in that respect. It was the duty of the plaintiff, before the trial came on, to submit it to his counsel for inspection ; and if the authentication were imperfect, he ought to have moved for a continuance.

It is no way accounted for, why this was not done. The mere stating that a party was surprised, is not sufficient to authorize a court to open a cause, after a trial. The Court ought to be satisfied that there was surprise, either from what appears in the affidavit, or otherwise. The affidavit is not conclusive as to the truth of the fact of surprise. We cannot say that the Court erred on this ground.

In relation to the second point, the Circuit Court were correct in rejecting the evidence of words spoken after the commencement of the action. Words spoken at different times, previous to the institution of the suit, though not declared on, might have been given in evidence, in order to ascertain the intent with which the words declared on were spoken. But words spoken afterwards might be the ground of another action; and therefore ought not to be received in evidence.

The judgment of the Circuit Court must be affirmed.