MAMIE H. ALLEN
v.
L. R. POWELL, JR., AND HENRY W. ANDERSON, AS RECEIVERS OF SEABOARD AIR LINE RAILWAY COMPANY, A CORPORATION
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The Florida Supreme Court affirmed a trial court's decision to grant a new trial. The new trial was granted because the plaintiff allegedly concealed a material witness by using a fictitious name on a subpoena, which the court found to be a fraud on the court and opposing counsel.
No, the trial court did not abuse its discretion in granting a new trial. The court found that the plaintiff's actions constituted a fraud on the court and opposing counsel.
“The mere fact that a witness is not subpoenaed does not disqualify him as such or vitiate his testimony but since the matter of granting or denying a new trial is one in the discretion of the trial court and after taking evidence and considering the contents of the motion in this case, he exercised that discretion in the affirmative, we do not feel justified in reversing him.”
This quote explains the court's reasoning for affirming the trial court's decision, emphasizing the discretionary power of the trial court in granting new trials.
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This writ of error is to an order granting a new trial on the ground that the plaintiff concealed the name of a material witness in the cause by causing a witness subpoena to be issued to a fictitious person and then changing it to be directed to the real witness.
Defendant in error contends that such procedure deceived the court, the jury, and defendant and was a fraud on them and prejudiced them in the preparation for and in the trial of the cause. When the motion for new trial came on to be heard, the trial court took evidence on these issues and granted the new trial.
Section 4374, Compiled General Laws of 1927, requires the Clerk of the Court to issue all subpoenas for witnesses when application therefor is made and Section 4857, Compiled General Laws of 1927, requires him to keep a docket of such subpoenas and enter the name of the witness thereon. This docket is subject to inspection by counsel and may be of material value to *404him in the preparation of his case. Counsel for defendants in error allege that they inspected and relied on it in this case and were deceived by it.
The mere fact that a witness is not subpoenaed does not disqualify him as such or vitiate his testimony but since the matter of granting or denying a new trial is one in the discretion of the trial court and after taking evidence and considering the contents of the motion in this case, he exercised that discretion in the affirmative, we do not feel justified in reversing him.
Affirmed.
BROWN, C.J., WHITFIELD, TERRELL, THOMAS and ADAMS, JJ., concur.
BUFORD and CHAPMAN, JJ., dissent.
dissenting:
I think the record entirely fails to show that the defendant was in any wise injured by the irregularity occurring in connection with the witness subpoena and that the granting of a new trial constituted an abuse of judicial discretion.
CHAPMAN, J., concurs.
BUFORD, J.,
dissenting:
I think the record entirely fails to show that the defendant was in any wise injured by the irregularity occurring in connection with the witness subpoena and that the granting of a new trial constituted an abuse of judicial discretion.
CHAPMAN, J., concurs.
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Coplan Pipe & Supply Co., Inc. v. Ben-Frieda Corp., 256 So. 2d 218 (Fla. 3d DCA 1972)…. We hold that the trial court did not err in its ruling. In most instances, the better practice is to subpoena witnesses who may be called to testify at trial, rather than to rely upon their voluntary appearance. See Allen v. Powell, 150 Fla. 402, 7 So. 2d 465 (en banc); Rogers v. Visioneering Concrete Construction Company, Fla.App.1963, 155 So. 2d 163; VIII Wigmore, Evidence (McNaughton Rev., 1961) § 2199, p. 115. Appellant next argues that it sued as an assignee for value of a holder in due course, cit…