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udge shall certify in the bill of exceptions that it contains all the
ence (a). In all other cases, he shall certify that the bill of excepti
> true.

(a) See note {c) to \ 335.



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NEW TRIALS. 2JI



ARTICLE V.

NEW TRIALS.

1 defined,
for what cause it may be granted.

shall not be granted,
application for, when to be made generally,
how to be made generally,
upon grounds discovered after the term.

New trial defined— for what causes granted. — A new
amination in the same court of an issue of fact after a
y or a decision by the court (a). The former verdict or
b vacated and a new trial be granted, on the application
grieved, for any of the following causes affecting mate-
in tial rights:

ity in the proceedings of the court, jury, or prevailing
order of court, or abuse of discretion, by which the
ented from having a fair trial (b).
ict of the jury, of the prevailing party, or of his attor-

: or surprise which ordinary prudence could not have

t(4

e damages, appearing to have been given under the
ssion or prejudice (e).

the assessment of the amount of recovery, whether too
all, in an action upon a contract (/), or for the injury (g)

property (//).

verdict or decision is not sustained by sufficient evi-
contrary to law (J).

iscovered evidence, material for the party applying,
d not, with reasonable diligence, have discovered and
i trial (k).

law occurring at the trial and excepted to by the party
Jication (/).

ULES AS TO NEW TRIALS.
rounds to be of record,

grounds for a new trial can only be filed by an order of court, entered

and they should be indorsed filed. I Mon. % 3; 78 A>., 536.

nfor a new trial is necessary or allowable,

•by a jury, a motion for a new trial is necessary to enable a party to

urt of Appeals a correction of errors as to admitting or excluding evi-

refusing instructions {Humphrey v. JVatton, 2 Bush, 580 ; Detherage v.
46) ; and such motion is equally necessary when, in an ordinary action,

been decided by the court, upon a submission, by waiver or otherwise,

18



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272 TRIAL AND JUDGMENT. [TITL

of the law and facts {Helm v. Coffey ', 80 Ky., 176, and Henderson v. Dupree, 82 Id.,
overruling Union Ins. Co. of Louisville v. Groom, 4 Bush, 289) ; and in such cases the a
lant should require the court to "state in writing the conclusions of fact found separ
from the conclusions of law." {332.

But such motion is not necessary in an action in equity (4 Bush, 292). or upoi
trial of an attachment (84 Ky., 27) ; and an appeal may be taken, without such motion,
after a trial by jury, but it places only matters of record before the Court of App
See note (a) 2 to \ 333.

But a motion to rehear a motion for a new trial, which has been overruled, is
allowable; the only redress of the defeated litigant is by appeal. Louisville Rock and .
Co. v. Kerr, 78 Ky., 12.

3. Effect of a motion for a new trial.

Such motion, if made before rendition of judgment, suspends proceedings on the
diet ; as, the issuing of a writ of inquiry as to damages ( Wright v. Haddock, 7 Dana, a
and, if made after judgment, it suspends proceedings thereon; as, the issuing o
■execution or the prosecution of an appeal (2 Dana, 335 ; Louisville Chemical Wor
Commonwealth, 8 Bush, 179); and the motion may be decided at a subsequent term;
judgment is not suspended by a motion to set aside an order overruling a motion
new trial (78 Ky., 14) ; and the court can not prescribe the time for filing a bill of ej
tions whilst such motion is pending (10 Bush, 451-52) ; and it was held that the deal
a defendant, after judgment and whilst his motion for a new trial was pending, did
abate the action, though it was upon a cause of action which did not survive. Tut
adm'r v. Booker, 2 Dana, 334.

A motion for a new trial, if overruled, does not prevent a new motion therefor, up
ground not embraced in the first motion, if a sufficient excuse be made for not so embn
it {Hughes v. McGee, I Mar., 28) ; and a motion for a new trial does not prevent, nor
prevented by, a motion in arrest of judgment. 7 Dana, 473.

4. Effect of granting a nav trial.

(1) A defendant, after getting a new trial, can not appeal from the original judgn
9 Bush, 69.

(2) If a judgment in an action at law or decree in chancery be improperly set asid<
a motion for a new trial or a petition for a rehearing, and a different conclusion be an
at in a second judgment or decree, the Court of Appeals will not merely set asid<
latter but will direct the former to be re-instated. 2 Bibb, 177 ; 6 Mon., 243 ; 6 Bush,

5. Weight given to opinion of presiding judge.

" This court has always required that cause should be very clearly made out to ju
the reversal of a judgment for refusal to grant a new trial." King v. Walker, 1 Mar.,

But in Ewingv. Price, $J. J. M., 520, in which the only ground relied on for a rev
was the granting of a new trial to the appellee, the Court of Appeals, after stating
which would have justified the court below in refusing the new trial, said : " But the
a material and obvious distinction in the grounds which will require the reversal
judgment overruling, and one granting, a new trial. By granting a new trial the case is
kept open for another trial on the merits, and in that trial each party has an equal cb
for justice. But, by overruling a motion for a new trial, the unsuccessful party is
eluded, and may be subjected to irretrievable loss and irreparable injustice. There
this court will be more inclined to sustain a judgment granting, than one overrulii
new trial." And see Caldwell v. Wright, 8 B. M., 526; Ford v. Gregory's heirs, 10
182; Guthrie v. Bogart, 1 Mar., 334.

6. Imposing terms on application for a new trial.
(1) Generally.

In an action for assault and battery (the cause of action for which dies with the pen
the defendant died whilst his motion for a new trial was pending ; and the court h



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NEW TRIAI



the motion, which the deceder
• held that a new trial should havi
side the judgment and granting
o take away the plaintiff's right
e accorded except upon terms su<
lions for new trials are addressed
:umstances of the case require it,
:ty of prescribing such terms as
images as the jury may think her
i the court reversed the judgment
ded the administrator will enter
Land as a security for whatever da

And, in an action for tort, four <
; moved for a new trial, it was he!
upon terms that she should dism
ence, and in rendering judgment
, 15 B. A/., 547. But the court 1
iating to the case then before it

of exceptions as to previous de

fc

it
n


c

f

ts
a

ti

.1,
fc
a



ule, the court, on granting a new
»ts which have accrued, but the c

order that the applicant pay all
libbs, Utt. 5. C, 19; Carbon v.
without requiring payment of cos
irm, nunc pro tunc. Slack v. Pru
>ailey $ 1 /. /. M., 478, an order
' twenty days before the next tern
night not to leave their judicial 2
isterial officers ; " but in Dana v
aside a nonsuit " upon the pay
icution might issue upon it. As
w trial " upon the payment of c<
tmU % 80 A>., 456.

trial be granted to a party upon
ng instructfons, the question of
n. )Bush, 744.



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274 TRIAL AND JUDGMENT. [TITL

7. New trials in actions for tort against several defendants.
See note (a) 4 to \ 326.

8. Evidence on application for new trial.

The applicant's affidavit is competent evidence of the facts relied on {$J. J. Af.,
I Dana, 530), and maybe opposed by counter affidavits. 1 Afar., 213; I A/on., i<
Dana, 530.

9. When the play is not worth the candle.

In a trifling or frivolous action, a new trial will not be granted to the plaintiff, th
the verdict for the defendant be against the evidence. Smith v.Surber, 2 Afar., 449;
see 2 Bibb, 542-43 ; 2 Mar. % 546; 5 /./. Af., 531.

(b) Irregularity in the proceedings of the court, ac.

After the retirement of the jury, the court has no right to give them any inform
as to the law or the evidence in the absence of, and without notice to, the parties or
counsel. §321 ; Goode v. Campbell, 14 Bush, 75.

The finding of a verdict by a jury of either more or less than twelve men is groun
a new trial unless the objection be waived. 7 Afon., 408 ; 5 J. J. Af., 286, 300.

(c) Misconduct of the jury, of the prevailing party or his attorney.
I. As to the jury and jurors.

1. Disqualifications of jurors.

It has been said that, " as a general rule, whatever would be a good cause of chall<
if discovered in time, will be cause for granting a new trial, if not discovered before
diet." Hardin, 168.

But it seems better to say that the discovery, after verdict, of a merely legal dis\
Jication, is not ground for a new trial; as, that a juror is an alien (9 Dana, 203) or is
house-keeper (3 Afar., 330) ; but that a moral disqualification, which is discovered too
for challenge, and which could not have been previously discovered by the use of re
able diligence, is ground for a new trial ; as, that a juror is related to a party by co
guinity or affinity (1 Dana, 530), or had formed and expressed an opinion adverse t
party. Hardin, 167; 3 Bibb, 347; 4 fd., 191 ; I B. Af., 214.

But, a juror having been accepted after stating that he had formed an opinion, de
ant's discovery, after verdict, that the opinion was against him, is not ground for a
trial (4 Litt., 1 18); and discovery, after verdict, that a juror had formed and express*
opinion in favor of the plaintiff is not ground for granting him a new trial. Litt. .SIC,

And after a second verdict against the defendant, who was not present during the
his attorney made affidavit that, after the verdict, he had discovered that one of the fc
jury composed part of the latter; and this was held to be ground for a new trial {Ha
v. Bradshaw, 4 Bibb, 45) : contra, Fitzpatrick v. Harris, 16 B. Af., 564, in which the c
without noticing Herndon v. Bradshaw, said: "The record of the former trial furnish
the parties and their counsel the means of knowing the names of the jurors who had
tried the case, and even if they were not personally known, the identity of name v
probably suggest the identity of the person ; and, even without the trouble of exam
the record, the fact that there had been a previous trial authorized and should have
gested the question to be asked of the juror himself whether he had been one o
former jury : " and see 4 Bibb, 272.

2. Afisconduct of the jury or of a juror.

A new trial will not be granted because the jury disregarded erroneous instruc
(3 y. J. Af., 155) ; nor because a juror made an improper communication to the
cessful party (5 Lilt., 11) ; nor because intruders (not witnesses) made idle and impert
observations to the jury which do not appear to have been listened to as matti
evidence (3 Bibb, 8) : and, according to a dictum in Heath v. Conway, I Bibb, 39^
jury, in an action for damages, have a right to find a verdict by adding the sums \
each juror is inclined to give and dividing the aggregate by twelve; but the correct™



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NEW TRIALS. 275

[uestioned in Allard v. Smith, 2 Afet., 297, in which an instruction that

ht thus to arrive at a verdict was held to be erroneous.

al should be granted, if the sheriff tamper with the jury (3 Bibb, 486) ;

had retired, a witness who had been examined for the appellant was sent

e-examined without the knowledge or consent of the court or the parties :

h he was the witness of the party seeking to reverse the judgment, and

lie same matters in reference to which he had previously testified, it was

\ jury, and a new trial for this reason ought to have been granted. Lul-

*d Lexington R. R. Co., 18 B. Af., 294.

i in the next following note impliedly establish several other grounds for

ial, if the facts can be proven by competent evidence.

a verdict by testimony of jurors.

>mpetent to impeach their verdict by testifying that they had been tam-

sheriff (3 Afon., 415) ; or that a juror, not sworn as a witness, had stated

the other jurors (3 Afar., 396), or that a juror, after the verdict, made
rig his partiality and incompetence (I B. Af., 213) ; or as to the motives

influenced the jury in their finding (Hardin, 586; 3 Afon., 59, 60); or
rors did not agree to the verdict (Johnson v. Davenport, 3 J. J. Af., 390) ;
tment, which was returned by competent jurors, was agreed to when
> was incompetent (Commonwealth v. Skeggs, 3 Bush, 19) ; or that the
result of an agreement that such a verdict should be rendered as was
jority of the jury (13 Bush, 651) ; or that, in an action for damages,
rived at by adding the sums which each juror was inclined to give

aggregate by twelve. Heath v. Conway, 1 Bibb, 398 ; A/lard v. Smith,

>wever, competent to prove that the verdict rendered was not intended ;
i agreed to find for the plaintiff and to give him five shillings damages,
eman had, through mistake, delivered a verdict for the defendant (Har*
:, there being two issues, the jurors agreed to find one issue for the plain*

for the defendant, and that their foreman had, by mistake, delivered a
Dr the defendant (3 /. J. Af., 395) ; but the admissibility of such testi*

confined to cases of mistake clearly made out, and which may be conceded
ibjectingthe jury to any imputation of impure motives or palpable impro*

." 3/ /-V.. 395.

a verdict by testimony of jurors.

Vance v. Haslett, 4 Bibb, 192, a juror is incompetent, after verdict, to
s impartial: contra, Cain v. Cain, 1 B. Af., 214, in which no notice was

Haslett.

t of the prevailing party.

;tion "don't hang," made by the defendant in hearing of a juror, was
ng the plaintiff a new trial, though the jury had found a verdict in his
. Campbell v. Bannister, 79 Ky., 205.

1 against A, as principal, and B, as surety, in which A denied his liability,
plaintiff received satisfaction of his demand from B before obtaining
A, did not entitle A to a new trial, he having failed to show that he had

;he payment before rendition of the judgment, and could not have learned
e of reasonable diligence. Alexander, &c, v. Lr.vis, 1 Afet., 407.
ubs. 4, and notes.

' OR SURPRISE WHICH ORDINARY PRUDENCE COULD NOT GUARD AGAINST.
&*•

obtain a new trial, on the ground of accident or surprise, the applicant
l£ bad used due diligence in preparing for trial, or had been prevented



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2f6 TRIAL AND JUDGMENT. [TITLE

from doing so by accident or surprise. Brevard v. Graham, 2 Bibb, 177; Mussin v. (
lins, I Mar., 350; Richardson v. Finney, 6 Dana, 319.

(2) The application should be founded on an affidavit, and not on an offer to make o:

1 Bibb, 400.

(3) If the applicant be a defendant who has not answered, he must show that he ha
valid defense. 6 Dana, 320; 7 Man., 61.

(4) If the motion be founded on the absence of the applicant's witnesses, his affida
must show who they are and what they will prove. 6 Dana, 320.

(5) If the motion be founded on the ground that the applicant was surprised by adve
testimony, his affidavit should " set forth distinctly the testimony with which he was s
prised, and the means by which he could counteract it on another trial." I Bibb, 400.

(6) The negligence or diligence of a party's agent or attorney, and his affidavit w
reference thereto, are equivalent to those of the party; and this includes one of seve
co-parties who is relied on by the others to conduct the prosecution or defense. 7 Mon., (

2 Dana, 337-38-

(7) Though the Code requires only "ordinary prudence" in order f guard agai
• accident or surprise, great particularity has been frequently required in the statement

facts showing the exercise of such prudence. See Thompson v. Porter, 4 Bibb, 70; Hoh
v. Me Kinney, 4 Mon., 6; Hunt v. Boyer t 1 J.J. M., 486.

But the following have been held not to be grounds for a new trial, viz. : Absence of pa
on private business (iJ.J. M., 487) ; indisposition of party which made it impossible
him to attend court "with any degree of composure." 4 Bibb, 413.

As to surprise, the following have been held to be grounds for a new trial, viz. : Render!
judgment during the "casual absence" of the defendant and his attorney (15 B. M., 63*
trying cause before 12 o'clock on first day of term (7 Mon., 399), or without disposing
causes that stand before it on the docket (6 Dana, 89) ; mistake of counsel, upon an erro
ous suggestion by the court, as to the meaning of the contract sued on (iJ.J. M., 51) ; fail
of commissioner, to whom cause is referred for settlement of accounts, to report vouch
filed with him by the defendant (84 Ky., 225) ; exclusion of documents or depositions n
on a former trial without objection (1 J. J. M., 100; 9 Dana, 26) ; exclusion of a de;
sition taken de bene esse, because the commission to take it was awarded by the co
upon a certificate of the clerk — the statute requiring a justice's certificate {Thompson
Porter, 4 Bibb, 70) ; exclusion of a deposition which the party believed would be adn
sible, and under circumstances which would naturally produce such belief (1 Mar., 29, 3
exclusion of a document which the party and his counsel believed, and had a right
believe, was an original deed (2 J. J. M., 515) ; discovery by an administrator (who \
defendant), after the jury was sworn, that the bond sued on had been altered (1 J. J. 1
96) ; and though, as a general rule, a new trial will not be granted to enable a party
impeach the credit of an adverse witness (4 Bibb, 349; 2 Mar., 381 ; I Litt., 161), it 1
been held to be exceptionally otherwise when a party has been surprised by the testimc
of such witness. Millar v. Field, 3 Mar., 104; McFarland's adnCr v. Clark, 9 Dana, I,

But the following have been held not to be grounds for a new trial, viz. : Absence
party's witness, who was known to be absent when the party determined to risk a ti
(I J. J. M., 590) ; absence of a witness by whom the party expected to prove a fact "<
fusively known," such as the current market price of whisky (1 Mar., 152); testimony
adversary's witness placed on the stand by the party complaining (2 Mar., 42) ; adversar
failure to introduce evidence as the party complaining expected him to do (3 Mar., 464
Dana, 37) ; unexpected evidence impeaching the character of party's witness (4 Litt., Ill
intoxication of a witness, which prevented him from telling what he knew — his conditi
being manifested during examination, the party should have asked for a continuance
postponement of the trial (9 B. M. y 8) ; exclusion of a deposition taken de bene esse, th<
being no evidence of the witnesses' inability to attend (4 Litt., 11); exclusion of imn



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278 TRIAL AND JUDGMENT. [TITL



And, in view of the physical and mental suffering caused by injuries to the pc
jreat latitude has been allowed to juries in giving compensatory damages for such inji
he court having refused, in such cases, to set aside, for excess, verdicts ranging
54,400 to $10,000 {Shirley v. Billings, 8 Bush, 147 ; L. & N. R. Co. v. Brook's a*
$3 Ky., 129; same v. Moore, Id., 675) ; but verdicts for compensatory damages for inji
he person were set aside, on the ground of excess, in L. &° N. R. Co. v. Fox, 11 j
195, in which the verdict was for $30,000 ; and in South Covington <5r* C. S. R. Co. v. I
I4 Ky., 267, in which the verdict was for $4,000; the court, in each case, calling atte:
:o the distinction between exemplary and compensatory damages.

But in an action by a father for consequential damages resulting from a personal i:
o his child, the jury have no right to give damages for the father's mental anguish
ioned by the suffering of the child (9 Bush, 456-57); though, in an action for malici
tilling a domestic animal, the jury have a right, and it is proper, to consider the fact
:he animal was a "favorite" of the plaintiff. 3 Dana, 583-84.

(/) As to damages in actions on contracts, sec note X, ante, page 77.

{g) AS TO DAMAGES FOR INJURY TO PROPERTY.

It has been shown (note 3, page 85) that, at common law, the jury may give €
jlary damages for the malicious injury of property, but that the plaintiff is entitli
>nly compensatory damages for a negligent injury, unless the negligence be so gross
tuthorize a presumption of malice. Though the language of subsection 5 makes nc
iriction between malicious and merely negligent injuries, it seems clear that it was inte
apply only to the latter, leaving the jury free to give exemplary damages for the foi
iuch damages being given, not for injury of the property (as to which the jury is restr

compensatory damages), but for the willful wrong: see 3 Dana, 583. And it s
probable that the legislature has no power to prevent a jury from finding exemplary
iges for the malicious injury of property. See 83 Ay., 139.

(h) AS TO ASSESSING THE AMOUNT OF RECOVERY IN ACTIONS FOR THE DETEN
DF PROPERTY.

1. As to damages in actions for real property, see note {d), ante, page 56, and note 3,
page 87.

2. As to assessing the amount of recovery in actions for specific personal property.

At common law, the judgment for the plaintiff in an action of detinue was the sai
;hat required by §388 of the Code, viz., for the property, if to be had, and, if not, f
ralue, and for damages for its detention; unless, after verdict, the plaintiff, as he 1
•ight to do, released his claim to the value and demanded judgment for the property

1 Mar., 180. If, however, judgment was rendered in the alternative, the defendant
satisfy it either by delivering the property or by paying its assessed value (5 J.J. M.
ind, hence, an excessive valuation of a slave was not ground for a new trial, unl
ippeared that the slave was dead or for some other reason could not be restored. 4
J2; 1 Mar., 68. But, under ch. 38, art. 6, of the General Statutes, the plaintiff, h
obtained a judgment in the alternative, can cause an execution to be issued either fc
property or for its assessed value ; and, therefore, it seems clear that an excessive vain
jf the property is ground for a new trial as to the assessment. See McDowell v. C
heirs, 5 J. J. M., I.

3. As to damages for the detention of personal property, see note 6, ante, page 108 ;
lote 3, ante, page 87.

(i) That the verdict or decision is not sustained by sufficient eviden

I. As to verdicts in ordinary actions.

(1) A verdict which is founded on an erroneous inference by the jury from t
proved should be set aside (1 Mar., 548-49) ; as, if the jury find that the defendant
•anted the soundness of a horse from the fact that he said, without fraud, that the
was sound (3 Bibb, 36) ; or find that the defendant contracted to do an act from th



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NEW TRIALS. 279



d to do it, but without proof of a valid consideration for the promise.

t founded on the testimony of a witness of infamous character, as to an

•n of the defendant, was set aside. 6 Men., 136.

es in which there is conflicting evidence, I need not cite authorities to

>urt will not set aside a verdict when it regards the evidence as leaving

is to what verdict ought to have been rendered. The only question relates

ch the court should give to what it regards as the preponderance of evi-

e verdict.

aid that "a court of original jurisdiction ought not to grant a new trial

onflicting evidence, except the weight of evidence clearly preponderates

ict " (2 Mar., 522) ; that, " to authorize the court before which the verdict

t it aside on the ground that it is against evidence, it should be clearly so ;

court to reverse the judgment of the circuit court, because it has refused

grant a new trial, it should be still clearer*' (5 J.J. M., 597) ; and that,
rence by the Court of Appeals, "it must be a clear case against the ver-
122); the verdict must be "clearly and palpably against the weight of the
r ar., 182-83; Lift. S. C, 185); there must be sush a destitution of evi-
t of the verdict as to render it " flagrantly unjust." 2 J.J, M., 6. For
tiich the Court of Appeals has refused to set aside verdicts on • the ground
not sustained by the evidence, see 4 Bibb, 195; 1 Mar., 59, 551; 2 Id.,
12; 3 IMt, 14; Lift. S. C, 185 ; 2/./. M. t 310; 3 Id., 391 ; 4 Id., 399;
?. M., 390; 7 Id., 109, 123, 566; 9 Id., 373; 10 Id., 256; 12 Id., 368;
htv., 506.

hand, it has been said that the Court of Appeals should award a new
used by the court below, •« whete, admitting the truth of the evidence
port of the verdict, and all the conclusions which might be rationally
t, the law would not warrant the finding of the jury" (4 Bibb, 195; 4



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 40 of 142)