SURPRISE. In Equity Practice. The act by which a party who is entering into a con tract is taken unawares, by which sudden, confusion or perplexity is created, which ren ders it proper that a court of equity should relieve the party so surprised. 1 Story, Eq. Jur. § 120, n.
The situation in which a party is placed without any default of his own, which will be injurious to his interests. Rawle v. Skip with, 8 Mart. N. S. (La.) 407.
Jeremy, Eq. Jur. 366, 383, note, seems to think that the word surprise is a technical expression, and nearly synonymous with fraud. It is sometimes used in this sense when it is deemed presumptive of, or ap proaching to, fraud. 1 Fonbl. Eq. 123 ; 3 Ch. Cas. 56, 74, 103, 114.
Surprise, as a ground for the granting of a rehearing in equity, must be something unex pectedly arising under circumstances which the party was not reasonably called upon to anticipate and which ordinary foresight could not guard against; Anderson Land & Stock Co. v. McConnell, 171 Fed. 475.
In Law. The general rule is that when a party or his counsel is taken by surprise, in a material point or circumstance which could not have been anticipated, and when want of skill, care, or attention cannot be justly Imputed, and injustice has been done, a new trial should be granted ; Hill, New Tri. 521.
Surprise may be good ground for a new trial in criminal as in civil cases ; 10 K L. & E. 105; but in neither case is surprise arising after verdict sufficient to warrant an applica tion to the discretion of the court ; 2 Parker 673. Nor will a new trial be granted where the ground of the surprise is evidence which was clearly within the issues presented by the pleadings ; Gulf, C. & S. F. R. Co. v. Shearer, 1 Tex. Civ. App. 343, 21 S. W. 133 ; or unless one made application for a post ponement of the trial in order that he might repair the injury done him by the unexpected testimony ; Overton v. State, 57 Ark. 60, 20 S. W. 590.
It is not ground for a new trial that a de fendant was taken by surprise by the court's calling the attention of the jury to a statute relating to its legal obligation, though, had it foreseen such action, it might have had further evidence on the question of fact ; Chicago, M. & St. P. R. Co. v. Vdelker, 129 Fed. 522, 65 C. C. A. 226, 70 L. R. A. 264.
See NEW TRIAL; PLEADING.