Schellhous v. Ball

Citations

• 29 Cal. 605

Syllabus

<p>New Trial on Ground of Surprise.—A new trial on the ground of surprise should not be granted unless it clearly appears that the verdict is mainly attributable to the facts out of which the surprise resulted, and that the surprise has not resulted from the fault or negligence of the moving party.</p> <p>Same.—If the party claiming to have been surprised can relieve himself, either by a nonsuit, a continuance, or the introduction of other testimony, or in any other way, and fails to do so, a new trial will not be granted.</p> <p>Same.—If, during the argument of a case to the jury, a dispute arises between counsel as to whether a certain paper was introduced in evidence, and the Court decides it was, the party claiming to be surprised by the decision should apply to the Court at once for leave to introduce rebutting testimony, if he has such testitimony, and if he fails to do so a new trial will not be granted.</p> <p>Surprise during a Trial.—When, during the progress of a trial, conditions are found to exist which may amount to legal surprise, the Court should, if an application is made therefor, grant relief at once, if the facts are such as would justify the Court in setting aside the verdict after the trial.</p> <p>Evidence of Surprise during a Trial.—The party alleging surprise during the progress of a trial should show it by the best evidence within his reaeh.</p> <p>Same.—If, during a trial, facts exist which amount to legal surprise, these facts should be shown by the affidavit of the attorney, and not of his client.</p>