Schoonover v. Stillman

3 Shan. Cas. 619

• Court: Tennessee Supreme Court
• Decided: September 15, 1875
• Status: Published

Opinion

Nicholson, C. J.,

delivered the-opinion of'the. court:

There was no error in disallowing the set-off, but- there was an error in refusing a new trial for the newly discovered testimony.

Asa general rule, if a witness fails to disclose evidence within his knowledge, under examination, his subsequent disclosure of the proof will not be good ground for a neiw trial. Tbe failure of counsel to propound the necessary interrogatories to extract from the witness all his knowledge as to matters in issue will be such want of diligence as will deprive the party of a new trial. 3 Graham & "W atermau on New Trials, 1029.

But in the present case the objection is outweighed hy tbe strong circumstances in favor of a new trial, wbieb axe found in tbe general character of tbe case, and tbe satisfactory reasons given by tbe counsel for failure to interrogate tbe witness as to the newly discovered matter. 3 Graham & Waterman, N. T., 1041.

A new trial will be granted unless the payment of $500 is remitted.