Reeder v. Traders' National Bank

Citations

• 28 Wash. 139
• 68 P. 461
• 1902 Wash. LEXIS 467

Syllabus

<p>NEW TEIAL--ACCIDENT AND SUEPEISE-BESIDENCE OE WITNESS-SUFFICIENCY OE SHOWING.</p> <p>In an action by a trustee in bankruptcy to recover possession or the value of certain promissory notes held by defendant and alleged to be the property of the bankrupt, the defendant answered that it had received the notes from one Fleming for collection. In his reply plaintiff set up that said Fleming’s title was without consideration and for the purpose of defrauding the creditors of the bankrupt. The deposition of Fleming, taken in Canada, gave his residence as “Pittsburg, Massachusetts.” Before trial plaintiff submitted written interrogatories to defendant asking for the place of residence and postoffice address of said Fleming, to which defendant answered that it did not know. More than a year before trial defendant’s attorneys had received an affidavit showing Fleming’s true residence, but had mislaid it and could not find it until the day after the trial. On the trial plaintiff proved there was no such place as Pittsburg, Massachusetts, and upon argument suggested that the postoffice address and place of residence were being concealed in order to prevent plaintiff from procuring testimony in support of the issue of fraud. The jury found for plaintiff. Held, that it was error to grant defendant a new trial on the ground of accident and surprise and newly discovered evidence, since it must have been apparent from plaintiff’s written interrogatories to defendant, that the matter of residence must have been regarded by plaintiff as material for some reason, and was sufficient notice to put it on inquiry to inform itself, though not put in issue by the pleadings.</p> <p>SAME-DISCEETION OF TEIAL COUET-EEVIEW ON APPEAL.</p> <p>An order granting a new trial, although 'a matter resting largely in the sound discretion of the trial court, is reviewable on appeal; and its reversal is authorized when it is granted on the ground of accident or surprise, and it appears that the surprise