Ela v. Ela

As to the motion for a new trial of the libel for divorce, the exceptions are not insisted on in the argument, and are overruled. The exception to the exclusion of the evidence relating to the plaintiff's reputation for truth and veracity, in April, 1882, was the only material exception upon that branch of the case, and, so far as appears, that evidence was known to the defendant, and could have been produced on the former trial; and it was properly excluded.

The petition for a modification of the decree as to alimony is of a different character. It is not a petition for a new trial, but an application under s. 15, c. 182, Gen. Laws, which authorizes the court, upon proper application and notice to the adverse party, to revise and modify any order made respecting alimony, and to make such new orders as may be necessary, and award costs as justice may require. Applications under this statute are not subject to the limitations governing petitions for new trials in common-law actions. They may be made at any time, and when such an application is properly made, it is the duty of the court to hear and consider it. Folsom v. Folsom, 55 N.H. 78, 81; Sheafe v. Sheafe,36 N.H. 155; Sheafe v. Laighton, 36 N.H. 240, 243; Sheafe v. Sheafe,29 N.H. 269. And upon such hearing the evidence used upon the question of the divorce may be reexamined and considered. Sheafe v. Sheafe, 24 N.H. 564.

On a petition for a new trial the question is, whether a further hearing would be equitable; and this involves an examination of the grounds of the application, and the question of reasonable diligence on the part of the petitioner. On these questions the evidence used on the original hearing is immaterial. When the new trial is granted, the hearing proceeds as if no trial had been had, all competent evidence is received and considered, and it is no objection to evidence otherwise admissible that it was introduced on the former hearing. On an application for a revision of a decree for alimony, the right to a hearing is expressly granted by the statute, and the question is, not whether the petitioner shall be allowed a hearing, but whether, being heard, a case is made for relief; — not whether the evidence shall be received, but whether, being received and considered, it calls for a modification of the decree. A revision of the decree involves a reexamination of the evidence upon which it was made, and evidence used on the original trial, or which might have been presented by the exercise of due diligence, is not for that cause to be rejected. Whether justice requires a modification of the decree must be determined from all the facts in the case.

The court excluded the evidence introduced on the former trial, and denied the petition on the new evidence obtained since the decree was made. Although the new evidence alone was insufficient to require or justify any modification of the decree, it cannot be assumed that the decree would have been the same if all the evidence had been presented at the original hearing, nor that the petition for a modification would have been denied if all the evidence had been heard and considered by the court; and on this branch of the case the exceptions are sustained.

ALLEN and SMITH, JJ., did not sit: the others concurred.