Beaulieu v. Parsons

By the Court.

Atwater, J.

This is an appeal from an order of the Judge of the Second Judicial District, refusing a new trial, in a cause tried in that District, at the December term, 1857. The first ground of error alleged, is the refusal of the Court to receive on the part of the Defendant, the testimony of one Ambs, whom the Defendant proposed to examine on the trial of the cause.

This witness was examined on the part of the Plaintiff, Parsons, who asked him the price of muskrat skins, (being a part of the furs in dispute,) but inquired no further of this witness in regard to the value of the furs. The Defendant on cross-examination, proposed to inquire of him the value of other furs mentioned in the pleadings. This testimony, upon objection from the Plaintiff, was excluded by the Court, on the ground that it was not a proper cross-examination of the witness, and that if the Defendant wished the testimony of Ambs to those points, he must call upon him at a subsequent •stage of the cause. The counsel for the Defendant then stated that he wished and proposed to examine the said witness in regard to the, value of all the furs in litigation, during said trial, and at as early a stage of the proceedings as practicable; the Plaintiff’s counsel at the same time stating that the said witness had been subpoenaed by the Plaintiff, and that they had no objection to his remaining in attendance upon the Court during the trial of the cause, and be present and in readiness to testify in the cause when the Defendant’s counsel might call him. At a subsequent stage of the trial, the Defendant’s counsel did call the witness, who was not present, and as it appeared, had left the Court soon after he was examined by Plaintiff, and did not return. The counsel for the Defendant then moved for an attachment against the witness, but it appearing that the fees of witness had only been paid for one day, the motion was denied, and the Defendant was deprived of his testimony. Affidavits were introduced on the part of the Defendant on the motion for a new trial, tending to show that the witness had left with the procurement, or at the instigation of the counsel for the Plaintiff, but the opposing affidavits satisfactorily answer and rebut this charge.

There is no error in the refusal of the Court to allow the Defendant to examine the witness in the first instance onmatters in regard to which he had not been questioned by Plaintiff’s counsel. 14 Peters, 448; Greenleaf on Ev. p. 522, Vol. 1. Nor was the counsel for the Defendant in a position to insist on his right to an attachment against the absent witness. His fees had not been paid or tendered for the day when his testimony was required. In such case the Court would have had no right to issue a writ of attachment. (Rev. Stat. p. 473, Sec. 3.) The witness should have been duly subpoenaed by the Defendant if he wished to avail himself of his testimony; especially as it appears that he was early aware that he should require him as a witness, and had ample opportunity to secure his attendance by due course of law. If the Defendant chose to rely sinply on the statements of Plaintiff’s counsel, that they had no oljeebion to the witness remaining and giving testimony, he must suffer the consequences of his own neglect to conpel his attendance. The Court would not be justified in delaying the trial to procure the testimony of a witness in such circumstances, much less to attempt to procure his attendance by writ of attachment.

The Defendant below, alleges as further ground of error, the refusal of the Court to allow him to introduce several witnesses after he had rested his case to the question of damages. The facts in regard to the offer to introduce such testimony, appear from the case to be as follows:

When the cause came on for trial, (before the Hon. C. E. Elandrau,) and before the introduction of any evidence, to guard against any surprise and to save time, the Court notified the counsel for the respective parties, that in the conduct of the trial, each party would be held to the strict rules governing the regular trial of causes, by which neither party would be psermitted to re-open his case, nor to re-call a witness upon the same subject-matter, when once examined and dismissed from the stand.

The Plaintiff then examined three witnesses, and rested his case, with the exception of reserving the right, (with the consent of the Court,) of examining one Puller, to the question of damages only, who had been subpoenaed but was not then in Court, should he arrive before the trial was closed. The Defendant then examined several witnesses and rested his case. The witness Fuller having arrived, was then examined by the Plaintiff as proposed, on the question of damages only. The Defendant then offered to introduce several witnesses then in Court, to the same question as rebutting evidence. This was objected to by the Plaintiff and the objection sustained by the Court.

We see no error in this ruling of the Court. The Defendant could not claim that he was taken by surprise, as the parties had been early notified that the strict rules of law on the admission of evidence would be observed in the trial of the cause. He was notified of the precise point.to which the testimony of Fuller would be directed, and should have prepared himself to meet the most favorable testimony that might be presented on that point. It was urged on the argument, that inasmuch as the witness Fuller had been examined on the part of the Plaintiff after the defence had rested, therefore the rule should be relaxed on the part of the Defendant. But the privilege granted the Plaintiff in that instance, was not altogether of favor, inasmuch as it appears that the witness had been subpoenaed, and the Plaintiff was entitled to move for an attachment against him in the first instance. But in both cases, the introduction of the evidence was entirely in the discretion of , the Court, and even if he erred in the exercise of that discretion, it is not a subject of review by this Court. And whether the evidence proposed to be offered was rebutting or cumulative, would make no difference, it being a matter within the discretion of the Court, whether any further evidence shall be introduced after a party has rested his case. Graham on New Trials, Vol. 2, p. 675; 14 N. N. Rep. 442; 1 Hill, p. 300; 4 id. p. 202; 5 id. 286; Cow. & Hill's notes; Phillip’s Ev. p. 708, et seq.

It is also objected by the Appellant’s counsel, that the damages were excessive, and not warranted by the evidence. The damages, it is true were heavy, and perhaps in the opinion of the Court might be considered excessive. But this is a matter exclusively within the province of the jury, with which the Court cannot interfere. The rule is too well settled to be disturbed, that a new trial will not be granted on the ground of excessive damages, where there is any evidence to support the verdict, unless it be manifest that tbe jury were swayed by prejudice, partiality, passion or corruption. Minnesota Rep. Vol. 1, p. 161; Gilbert vs. Woodbury, 9 Shep. 246; Buornette vs. Hicks, 6 Tex. 352; Cook vs. Hill, 3 Sand. Sup. Court Rep. 341.

Tbe jury in tbis case did not find as large damages as some of tbe evidence tended to show, and there is nothing in tbe case to prove that they were influenced by any corrupt motive. Tbe jury are to weigh evidence and not count it, and even a large preponderance of witnesses to a particular fact, would not of itself justify a Court in setting aside a verdict which bad been rendered in favor of a party maintaining the opposite.

The order of tbe Court below must be affirmed.