Pettis v. Smith

9 Ky. 194, 2 A.K. Marsh. 194, 1820 Ky. LEXIS 6

• Court: Court of Appeals of Kentucky
• Decided: April 10, 1820
• Status: Published

Opinion

Judge Owsley

delivered the opinion of the court.

This writ of error is brought to reverse a judgment rendered against Pettis, upon a verdict found against him in an action of debt, brought by him against Smith in the circuit court.

It is assigned for error—1. The court in permitting the deposition of Geo. S. Brush to be read as evidence to the jury:—2. The court erred in refusing a new trial.

To justify a court to award a new trial because the verdict is contrary to evidence, the verdict must clearly be so: circumstances raising a suspicion that justice has not been done, will not authorise a new trial. Bibb for plaintiff in error.

The deposition was objected to on the ground, that, as Pettis was a non-resident, the notice of the time of taking the deposition, instead of being given to the attorney at law, should have been published in some authorised paper according to the provisions of the law on that subject.

Upon adverting to the statute regulating the taking of depositions in such cases, we are, however, satisfied, that the publication of notice is only required where the plaintiff has no agent or attorney in the county, to whom notice can be given; but where there is such an agent or attorney, notice to him is sufficient to authorise the reading of the deposition in evidence.

The new trial was asked for on the ground of the verdict being against evidence. To have authorised the court to award a new trial, the verdict should have been clearly against the evidence; but upon looking into the record we are unable to perceive any thing which can warrant such an inference. There are circumstances calculated to excite suspicion that justice may not have been done, but there is nothing which can authorise us to say the verdict is against evidence.

The judgment must be affirmed.