The plaintiff, who had been twice defeated in actions brought by him to have certain deeds delivered up and canceled, sought a new trial, alleging that the adverse judgment in the first case was mainly due to the refusal of the trial court to allow an amendment, upon the ground, urged in opposition, that it changed the cause of action; while the judgment in the second suit, in which the averments of the rejected amendment were repeated in the complaint, proceeded upon the opposite theory, being based upon the ground that the grievance set forth in each suit constituted but one, indivisible cause of action, and therefore that the decision in the earlier case constituted a bar to the second suit. The defendant demurred to the application for a new trial. Held that in view of the provisions of § 1125 of the General Statutes, which authorized new trials to be granted for mispleading, the discovery of new evidence, want of actual notice, "or other reasonable cause," the trial court erred in sustaining the demurrer, since the plaintiff, under his allegations, might be able to prove such a state of facts as would justify if not require the granting of a new trial.
ANDREWS, C. J.
The plaintiff brought an action against the defendant to the Superior Court in Fairfield county, in which he prayed that two certain deeds, then in the possession of the defendant, might be delivered up to be canceled. That action was tried at the September term of the court held at Danbury in 1895, and was decided against the plaintiff. In the present complaint the plaintiff claims a new trial of that case.
Section 1125 of the General Statutes enacts that "the Superior Court (and other trial courts) may grant new trials of causes that may come before them respectively, for mispleading; the discovery of new evidence; want of actual notice of the suit to any defendant, or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed; or other reasonable cause, according to the usual rules in such cases."
The Superior Court sustained a demurrer to the present complaint and dismissed the action with costs. The plaintiff has appealed. The complaint claimed a new trial for two causes. One is the discovery of new evidence. To so much of the complaint as sets forth this cause, we think the demurrer was correctly sustained. As to this cause, the complaint is clearly insufficient.
The other cause is set forth at length in the complaint, paragraphs eight to twelve, both inclusive. By sustaining the demurrer to the complaint the Superior Court has decided that under these averments a reasonable cause for which a new trial ought to be granted could not be proved according to the usual rules which govern the granting of new trials. We are not able to agree with the court in that view. We recognize fully that a new trial of a cause once heard and decided is not to be granted readily, nor without strong reasons. But we think that if the facts set forth in the complaint should be proved, and giving to them a favorable construction such as the court perhaps would deem itself required to give, a cause might be shown for which the court, acting reasonably, would be authorized to grant to the plaintiff a new trial, or possibly feel bound in duty to grant him one; and as this result is legally possible, the demurrer should not have been sustained.
The defendant has argued that a new trial should not be granted, because the deeds were given for a fraudulent purpose, viz., in order that the plaintiff's wife might not have dower in the event of his death. This purpose is stated in the complaint in immediate connection with the reason for the purpose, — that he believed her to be guilty of infidelity. It would not be fraudulent to deprive an unfaithful wife of dower. But as it is altogether possible that a state of facts different from that stated in the complaint will appear on the trial, we deem it wise to postpone the discussion of this question.