Opinion
Opinion filed February 16, 1936.
Petition for New Trial — Evidence Known at Time of Trial as Ground for Petition — Replevin — Evidence of Plaintiff's Disposal of Property before Trial as Material to Issues and as Ground for Petition — Allegation as to Mistake of Fact by Supreme Court Refuted by Record and Admissions as Ground for Petition.
1. Petition for new trial under the provisions of P.L. 2106 will not be granted where petitioner at time of previous trial knew of evidence which is ground of his motion and did not then produce it.
2. On petition for new trial of action of replevin, evidence that petitionee, plaintiff in action, prior to time of trial delivered property involved to a third party, who caused it to be manufactured and sold, is not material to any issue in the action and is without merit as a ground for the petition.
3. On petition for new trial of action of replevin, ground of petition that judgment of Supreme Court on review of the case was based upon a mistake of fact because the Court assumed that the action was brought after a certain date, held without merit where Court made no such assumption but stated in opinion that attachment by defendant officer was made on an earlier date, and where petitioner admitted in his brief on review of the case that the replevin action itself was brought subsequently to that date.
PETITION FOR NEW TRIAL. Action of replevin to recover possession of certain lumber taken by an officer under a writ of attachment. Plea, general denial. Trial by jury at the June Term, 1934, Bennington County, Jeffords, J., presiding. At the close of the plaintiff's evidence, both parties moved for a directed verdict, and plaintiff's motion was granted and defendant's motion overruled. The defendant excepted. Judgment affirmed at the May Term, 1935, of Supreme Court (see 107 Vt. 253, 179 A. 206). Defendant filed petition for new trial. Plaintiff moved to dismiss petition. The opinion states the case. Petition dismissed.
William L. Scoville for the defendant petitioner.
Marvelle C. Webber and Christopher A. Webber for the plaintiff petitionee.
Present: SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Supr. J.
This is a petition for a new trial, which petitioner says is brought under P.L. 2106. The action is replevin for a carload of lumber which defendant, petitioner herein, as deputy sheriff, had attached as the property of Perley R. Eaton. The trial below was at the June Term, 1934, of Bennington County Court and resulted in a verdict and judgment for the plaintiff, petitionee herein. The case came to this court on petitioner's exceptions, and the judgment was affirmed at the May Term, 1935. Other material facts appear in the opinion then handed down. See Quigley v. Wiley, 107 Vt. 253, 179 A. 206. Petitionee has filed a motion to dismiss the petition on the grounds that it does not comply in any particular with the requirements of Section 1, Rule 4 of this court; does not show due diligence in attempting to find the evidence now relied upon, and was not seasonably brought. Petitioner says in his brief herein that the real grounds for granting the petition are to be found in Paragraphs 7 and 14 thereof.
Paragraph 7 avers that, between the time when the officer who served the writ herein delivered possession of the property to the petitionee and the time of the trial, she delivered the property to Eaton, who caused it to be manufactured and sold, so that the petitionee was unable to deliver it to the petitioner in the event that such was the final judgment. Petitioner takes the position in his brief that the evidence of this is not newly discovered and, therefore, it was not necessary for him to comply with the provisions of the rule above referred to. This admission forecloses him from any relief under this paragraph of the petition. If he knew of the evidence, and deemed it material, he should have produced it at the trial. But manifestly it is not material to any issue here involved, and will not be material in any action unless it is finally adjudged that the property be returned to him. On petitioner's own showing, this ground of the petition is without merit.
Paragraph 14 of the petition alleges "that the judgment of this Court in said cause of action was based upon a mistake of fact, in that the Court assumed, for the purpose of the judgment, that the action was brought subsequently to May 4, 1935 [1931] for which reason there was an error of law in the said judgment." We are in doubt as to which action petitioner refers, but we made no such assumption in either. It is stated in Quigley v. Wiley, supra, page 258, that the attachment by defendant was made March 25, 1931, and on the same page it is said that plaintiff took possession of the property in controversy by virtue of the writ in this case May 6, 1931. That her suit was commenced on that day petitioner admits. He says on page 4 of his brief in the main case that "the date of plaintiff's writ was May 6, 1931," and on page 6 of the same brief he says that "her suit was commenced on May 6th." In view of the foregoing, the allegation that we assumed, for the purpose of the judgment, that the action was brought subsequently to May 4, 1931, and therefore erred in such judgment, appears to be unwarranted. For reasons pointed out in the opinion, petitioner never acquired any lien on, or rights in, the property in question under his attachment. On May 6, 1931, petitionee, for reasons stated in the opinion, had both title and right of possession thereto, and took the prescribed method of asserting her right.
Since the first matter relied upon by petitioner is immaterial, and the second is refuted by the record and his earlier admissions, further proceedings under, or consideration of, the petition are unnecessary and can serve no purpose other than to delay final disposition of the case.
Petition dismissed.