Turner v. Morrison

Baldwin, J., and Field, J., concurring.

This cause was tried below by a jury, and a verdict rendered for plaintiff. The defendant moved for a new trial on the ground of surprise, and in support of his motion filed affidavits setting out that one Henry Day was a necessary witness for the defense, that he had. been duly served with a subpoena before the trial, and his fees tendered him, but that he did not attend on account of sickness.

It also appears by the statement that, at time of the trial, defendants’ counsel stated in Court that the witness, who resided sixteen miles from the place of…