Sec. 52-270. Causes for which new trials may be granted. - Connecticut Statutes

      Sec. 52-270. Causes for which new trials may be granted. (a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.

      (b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice.

      (1949 Rev., 8013; 1959, P.A. 28, S. 120; P.A. 74-183, S. 95, 291; P.A. 76-93, S. 1, 4; 76-436, S. 486, 681; P.A. 82-160, S. 142.)

      History: 1959 act substituted circuit court for municipal court, which was abolished; P.A. 74-183 removed circuit court from purview of section reflecting transfer of its functions in reorganization of judicial system, effective December 31, 1974; P.A. 76-93 authorized grant of new trial for want of actual notice to plaintiff of entry of a nonsuit for failure to appear or dismissal for failure to prosecute with reasonable diligence; P.A. 76-436 removed court of common pleas from purview of section, reflecting transfer of all trial jurisdiction to superior court, and authorized granting of new trial in cases where parties or their counsel have not adequately protected their rights during the original trial of a cause, effective July 1, 1978; P.A. 82-160 replaced "cause" and "suit" with "action", designated the existing section as Subsec. (a) and added Subsec. (b) concerning evidence of want of actual notice which was formerly part of Sec. 52-270a.

      See Sec. 52-268 re new trial when judge, stenographer or court reporter dies or is incapacitated and review of errors is not possible.

      In general. History of power to grant. 65 C. 278; 94 C. 505. Wholly governed by statute; procedure and burden of proof. 75 C. 576; 76 C. 538. Petition for, is part of original proceeding. 75 C. 576. Petition for injunction against collection of judgment not petition for new trial; 44 C. 193; when it lies; 108 C. 17. Rules same in civil and criminal action. 65 C. 278; 69 C. 186; 72 C. 109; 74 C. 638; 79 C. 481. Not to be readily granted; but if cause can be shown under petition, demurrer does not lie. 72 C. 270. Harmless or technical error, or one where party himself is at fault not ground for. 11 C. 358; 18 C. 320; 19 C. 373; 21 C. 236; 31 C. 383; 72 C. 109; 80 C. 314; Error should not be granted where matter in dispute is trivial; 17 C. 486; 29 C. 123; 39 C. 306; or where lapse of time makes new trial ineffectual. 5 D. 335. Action of judge suo motu harmless where motion is later made. 83 C. 445. Discretion of court, and review in general; 2 R. 80; 12 C. 226; 51 C. 395; 72 C. 109; 80 C. 314; 84 C. 518; 85 C. 611; 87 C. 363; discretion means a legal discretion. 12 C. 154; 17 C. 539. "The usual rules" are rules of law and decision may be reviewed. 58 C. 67. New trials may be granted nisi. 9 C. 371; 12 C. 486; 30 C. 343; 31 C. 62. Petition may be brought at any time within three years, though judgment was by default. 93 C. 160. Trial court may grant for erroneous instructions. 94 C. 443. Discretion of court and its review. Id., 506. Affords remedy to party aggrieved by default judgment. 97 C. 123. Petition for new trial not independent proceeding but ancillary to original action. 112 C. 591. After expiration of term during which action was withdrawn, remedy of plaintiff if any would be by petition for new trial or proceeding in equity, but not by motion to restore. 123 C. 172. Insufficiency of declaration held no ground; 5 D. 230; 6 C. 83; 8 C. 242; nor error in pleading; 3 C. 294; but where administrator erred in pleading, beneficiaries were granted new trial; 73 C. 404; if party, having opportunity to amend, neglects to do so, no new trial. 83 C. 474; 85 C. 595. Where party had no notice of pendency of action. 46 C. 604; 55 C. 182. Does not lie where judge was exercising a discretion. 36 C. 460. Misconduct of juror. 50 C. 307; 72 C. 109; 80 C. 314; 84 C. 518; 87 C. 363; 90 C. 79. Equitable grounds; where application is to be made. 71 C. 432. Death of judge before appeal can be perfected. 76 C. 538; 87 C. 608; But see section 52-268. If under his petition plaintiff can prove a reasonable cause, demurrer does not lie. 72 C. 270. Since 1893, "other reasonable cause" includes a verdict against the evidence. 64 C. 61. Improper argument of counsel; 72 C. 202; Id., 252; 74 C. 638; Id., 700; 79 C. 477; 83 C. 160; Id., 183; Id., 652; 86 C. 100; improper conduct of counsel. 83 C. 702. Lack of opportunity to make, or prevention from making, defense. 93 C. 160. Existence of good defense must be proved to obtain new trial because of lack of opportunity to present it. 111 C. 103. Champertous agreement not a ground for new trial when fraudulent testimony not given. 100 C. 110. Death of stenographer, if it prevents raising questions on appeal, is ground. 105 C. 719. Allowing exhibits, prejudicial to party, wrongfully to be taken into jury room. 109 C. 726. Perjury on the part of the plaintiff should be raised by defendant by motion for new trial. Id., 328. Review of scope of statute. 105 C. 713. Misconduct on part of trial judge may be sufficient "reasonable cause". 114 C. 736. Must prove that mispleading came about through fraud, accident or mistake. 116 C. 699. Is an additional safeguard to prevent injustice where remedy by appeal does not lie, or where appeal is prevented by fraud, accident or mistake. 137 C. 58. Other reasonable cause includes cause for which equity could grant a new trial, such as, fraud, accident or mistake. 140 C. 464; 144 C. 389. Insanity which deprives appellant of right to consult with counsel on appeal, held not to constitute grounds for new trial under this section. 145 C. 11. Discretion of court to grant a new trial is not an absolute but a legal one; can be set aside for misconception as to limits of its power, error in its preliminary proceedings or for a clear abuse of its discretion. 146 C. 608. Where a judgment has been rendered after a default and there was no fraud, unfair dealing or misconduct on the part of the defendant leading to the entry of the default judgment, this section would support the exercise of discretion to grant a new trial only if there had been, despite the exercise of due diligence, no reasonable opportunity to defend and a just defense in whole or in part existed. 150 C. 188. Cited. 115 C. 42. Cited. 118 C. 230; Id., 294. Cited. 119 C. 220. Cited. 121 C. 379. Cited. 124 C. 644. Cited. 134 C. 483. Cited. 136 C. 364. Cited. 141 C. 202; Id., 214. Cited. 142 C. 27; Id., 676. Cited. 151 C. 716. Cited. 154 C. 294; Id., 314. See notes to section 52-265. Cited. 156 C. 72. Cited. 162 C. 318. Cited. 163 C. 166. Cited. 179 C. 246; Id., 415. Cited. 181 C. 58. Cited. 185 C. 495. Cited. 188 C. 281. Cited. 189 C. 573. Cited. 190 C. 667; Id., 707; Id., 774. Cited. 194 C. 510. Cited. 202 C. 561. Cited. 209 C. 143. Cited. 212 C. 387. Cited. 223 C. 834. Cited. 229 C. 397. Cited. 231 C. 745. Cited. 237 C. 576. Cited. 242 C. 125. Appellate court erred in concluding trial court had abused its discretion in denying a requested continuance and a motion for a mistrial; judgment of appellate court in State v. Brown, 41 CA 317. reversed. Id., 445.

      Newly discovered evidence. New trial not granted if evidence could have been secured on former trial with reasonable diligence; K. 282; 18 C. 493; 20 C. 310; 43 C. 191; 81 C. 325; 86 C. 684; 89 C. 401; 96 C. 254; 111 C. 115; nor if it be merely cumulative; 20 C. 310; 43 C. 193; 68 C. 50; 77 C. 15; 83 C. 477; 106 C. 6; 138 C. 717; 139 C. 690; cumulative defined; 96 C. 258; nor for mere afterthought of witness; 45 C. 266; 75 C. 576; 77 C. 15; 96 C. 254; nor if it be merely for impeachment; 32 C. 369; 58 C. 60; nor where result would not be changed. 68 C. 50; 80 C. 157; 86 C. 684; 89 C. 401; 91 C. 23; 96 C. 258. New evidence must be sufficient to turn scale, must not be cumulative, and ordinarily must do more than impeach the reputation of a witness. 94 C. 142. Cases where evidence held insufficient; 45 C. 266; held sufficient; 53 C. 360. Such evidence cannot be proved by mere ex parte affidavit. 45 C. 266. Rules same in criminal, even capital, case. 48 C. 92. Discretion of court. 75 C. 576; 77 C. 15; 83 C. 477; 86 C. 688; 89 C. 401; 91 C. 23; 96 C. 258. Pleading. 43 C. 188; 75 C. 576; 80 C. 157; 81 C. 325. Amendment of petition. 83 C. 477; 91 C. 23. Making proceedings on former trial part of petition. 75 C. 31; 86 C. 684. Applies, by analogy, to motion before compensation commissioner to open and modify his award. 106 C. 5. In such a proceeding diligence is not as essential as in a petition for a new trial in a court. Id., 107 C. 167. Not abuse of court's discretion to require plaintiff first to show that evidence as not discovered or discoverable by due diligence prior to or during trial of original action. 124 C. 670. Conditions under which new trial should or may be granted for false testimony by material witness. 131 C. 682; 146 C. 149. Absence of allegation that newly discovered evidence will probably produce a different result makes petition demurrable. 137 C. 642. New trial not ordinarily granted because of discovery of additional impeaching or discrediting testimony. 139 C. 249; 152 C. 512. Evidence not newly discovered which related to actions of accused himself. Id., 317. Where claimed newly discovered evidence would merely affect credibility of a witness, it is not ground for a new trial unless it is reasonably probable that on a new trial there would be a different result. 147 C. 566. To grant a new trial the evidence must be newly discovered, material to the issue on a new trial and such that it could not have been discovered and produced on the former trial by the exercise of due diligence. 152 C. 511. Evidence which is cumulative only and designed to attack the credibility of a witness is not ordinarily a ground for a new trial and is never such a ground unless it appears reasonably certain that injustice has been done and that the result of a new trial will probably be different. Id., 512. Fair opportunity to appeal is a "reasonable cause" for a new trial, but late notification of judgment does not prevent appeal and therefore is not cause for a new trial. Petition for new trial is not a substitute for or alternative to ordinary appeal. 164 C. 212. Cited. 168 C. 541. Failure of state to comply with mailing provision of Sec. 19-483(b) did not require granting of new trial under this section. 172 C. 16, 17. Cited. Id. Cited. 173 C. 334. Distinctions between a petition and a motion for a new trial examined. 180 C. 141.

      Cited. 1 CA 298. Cited. 2 CA 355. Cited. 3 CA 235; Id., 322; Id., 633. Cited. 10 CA 503. Cited. 14 CA 88. Cited. 15 CA 222; Id., 312; Id., 367; Id., 502. Cited. 18 CA 166. Cited. 19 CA 76. Cited. 25 CA 318. Cited. 29 CA 722. Cited. 32 CA 1. Cited. 33 CA 122. Cited. 34 CA 103. Cited. 36 CA 59. Final judgment is a condition precedent to proper filing of petition for new trial pursuant to this section. 69 CA 760. Exercise of due diligence is a condition precedent to finding of reasonable cause. 72 CA 692. Plaintiffs' did not meet burden of proving they exercised due diligence to discover evidence prior to trial. 75 CA 63. Pro se plaintiffs' mistaken interpretation of rules of practice, which led to their failure to file petition for certification to appeal, did not entitle them to a new trial under "reasonable cause" provision. 86 CA 147.

      When petition for new trial is fatally defective. 1 CS 83. As there is no specific method of petitioning for a new trial, a demurrer is within the intent of the statute. 14 CS 102. Petition is the established procedure for claiming new trial. Id., 505. Cited. 17 CS 325. Under a proper showing, the loss of all exhibits might be a "reasonable cause" for the granting of a new trial. 20 CS 469. New trial denied as claimed new evidence existed at date of original trial, and would probably not change the result if new trial were granted. 31 CS 296. Cited. 32 CS 349. Actual knowledge of pendency of action which may be inferred from personal service precludes granting relief from default judgment. 33 CS 572. Cited. 36 CS 53. Cited. 37 CS 645; Id., 891. Statute of limitations did not run since plaintiff was originally barred from action under this statute by Sec. 46b-172 which barrier was subsequently removed when it was declared unconstitutional. 38 CS 534. Cited. Id., 537; Id., 718. Cited. 41 CS 454. Death of judge while post-trial motions pending does not constitute reasonable cause for new trial since death does not affect ability to appeal or prevent defendants from pursuing appeal because of fraud, mistake or accident. 46 CS 650.

      Motion for new trial not equivalent to petition for new trial. 3 Conn. Cir. Ct. 387. Defendant's remembrance after trial of previously forgotten facts does not constitute newly discovered evidence. Id., 651, 654. Lack of diligence is shown by a failure to make inquiry of persons who are likely to know the facts in question. Id. Where plaintiff's motion to open judgment on default was denied, he was not precluded from petitioning for new trial. Determination of motion was not res judicata. 4 Conn. Cir. Ct. 201. Cited. 6 Conn. Cir. Ct. 531.

      Subsec. (a):

      Cited. 202 C. 429. Cited. 230 C. 427.

      Cited. 19 CA 76. Cited. 36 CA 59. "Other reasonable cause" includes every cause for which a court of equity could grant new trial, such as, for example, fraud, accident and mistake. 59 CA 291. Habeas court not barred under doctrine of collateral estoppel from determining that petitioner's trial counsel was not ineffective; issues of due diligence on petition for a new trial and adequate performance on claim of ineffective assistance are similar but not identical. 100 CA 94.