Surprise

In Equity Practice. The act by which a party who is entering into a contract is taken unawares, by which sudden confusion or perplexity is created, which renders 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. Skipwith, 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 approaching 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 unexpectedly 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. Mc Connell, 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 EL L. & E. 105; but in neither case is surprise arising after verdict sufficient to warrant an application 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 postponement of the trial in order that he might repair the injury done him by the unexpected It Is not ground for a new trial that a defendant 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. Voelker, 129 Fed. 522, 65 C. C. A. 226, 70 L. R. A. 264.

See New Trial; Pleading.