Kellogg v. Ballard
Wisconsin Supreme Court
ERROR TO CIRCUIT COURT, OUTAGAMIE COUNTY. This was an action commenced by Miles L. Kellogg, before a justice of the peace, against Anson Ballard, and appealed to the circuit court. The defendant was examined before the justice as%a witness in the cause, and was in attendance at the court on the day previous, and also a few minutes previous to calling on the cause for trial, when he could not be found to be notified or subpoenaed.
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ERROR TO CIRCUIT COURT, OUTAGAMIE COUNTY. This was an action commenced by Miles L. Kellogg, before a justice of the peace, against Anson Ballard, and appealed to the circuit court. The defendant was examined before the justice as%a witness in the cause, and was in attendance at the court on the day previous, and also a few minutes previous to calling on the cause for trial, when he could not be found to be notified or subpoenaed. After trial the plaintiff moved for a new trial, which was denied, and this writ of error was sued out on the judgment.
1Opinion of the Court
By the Court,
Cole, J.
We do not think there was any abuse of discretion on the part of the circuit court, in denying the motion made for a new trial in this case. The' grounds relied on in the motion were, substantially: 1st, That the appellant, or his counsel, depended upon the attendance of the respondent upon the trial, and was surprised by his sudden disappearance from court; and 2d, That the clerk gave testimony contrary to what was expected he would give. It is true courts sometimes grant a new trial where a party has been taken by surprise, as when a witness, who has been *441duly…
2Cited by2 opinions
- Lewellen v. WilliamsWisconsin Supreme Court · 1861
- State v. HackbarthWisconsin Supreme Court · 1938