McCafferty v. O'Brien

1 Cin. Sup. Ct. Rep. 64

• Court: Ohio Superior Court, Cincinnati
• Decided: October 15, 1870
• Status: Published

Opinion

Hagans, J.

It will be seen that this is not an action for

a new trial or for the equitable interference of the court to prevent injustice, but a suit for damages growing out of an alleged fraud committed by the defendant on the plaintiff*. This was the claim on the argument. The case is not framed with any other view, and would be clearly insufficient if it were. As a general rule, a plaintiff, after judgment against him, can not claim a new trial on the ground of being surprised by the defendant’s evidence. Cummins v. Walden, 4 Blackf. 307. So a party is not entitled to a new trial on the ground of surprise, because the opposite party led him to believe that certain facts would not be disputed or would be admitted; and if the plaintiff chose to rest the proof of the fact of her case upon her own testimony, and was led by the defendant to suppose it would not be disputed, and after it was disputed and her testimony known, chose to assume the responsibility of a decision in her favor, disappointment in the result furnishes no ground for a new trial. The plaintiff* took her course with due deliberation, and she must abide the consequences. She might have moved for a continuance, or have suffered a non-suit without prejudice.

The principles just stated are not stated because they apply to this case, but because their analogies furnish us a solution of it. Clearly, the judgment rendered is final, unless it was procured wholly by the fraud of the defendant, and can not be collaterally impeached,

But though, misled by the defendant, is not the plaintiff herself responsible for the result? She might have had a continuance of the cause or suffered a non-suit. She chose not to avail herself of either course. But with full knowledge of the alleged fraud, she chose to precipitate upon herself the very loss she seeks to recover in this action. Besides, after all this she might have appealed the case. This she neglected to do. The loss she alleges she has sustained, as she sues for it, has been the consequence of, and brought about by, her own negligence, and she might have avoided it if she had chosen to do so.

An old case, reported in Croke Eliz. 520, Damport v. Sympson, was an action on the case against the defendant for damages for falsely swearing in an action of trespass against himself, -whereby the plaintiff recovered £180, when he would have recovered £500 but for the alleged perjury. But the court held the action was not maintainable, and say, among other reasons, “ if this might be suffered, every witness would be drawn in question.” See, also, Eyres v. Sedgwick, Cro. J. 601; Harding v. Bodman, Hutton, 11.

In Connecticut a suit has been maintained against a witness by means of whose fraud or perjury a judgment was obtained. See cases cited in Peck v. Woodbridge, 3 Day, 30. But Chancellor Kent, when Chief Justice of the Court of Appeals of New York, denied the propriety of it in Smith v. Lewis, 3 Johns. 157. This was a suit against a plaintiff who, in a former suit in another Slate, against the plaintiff in this action, had, by suborning a witness to swear falsely, obtained a judgment contrary to the truth and justice of the case. The chief justice says: “It would be against public policy and convenience; it would be productive of endless litigation, and it would be contrary to established precedent to allow the losing party to try the cause over again in a counter suit, because he was not prepared to meet his adversary at the trial of the first suit.”

In this cause the judgment below will be affirmed.