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. 2 Brown, Ch. 150; 1 Story, Eq. Jur. § 120, note. The situation in which a party is placed, without any default of his own, which will be injurious to his interests. 8 Mart. (La.; N. S.) 407. Mr. 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 Chanc. Gas. 56, 74, 103, 114. See 6 Ves. 327, 338; 16 Ves. 81, 86, 87; 2 Brown, Ch. 326; 1 Cox 340.

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.

In equity practice. The act by which a party who is entering into a contract is taken unawares, by which sudden contusion or perplexity is created, which renders it proper that a court of equity should relieve the party so surprised. 2 Brown, Ch. 150. Anything which happens without the agency or fault of the party affected by it, tending to disturb and confuse the judgment, or to mislead him, and of which the opposite party takes an undue advantage, is in equity a surprise, and one species of fraud for which relief is granted. Code Ga. 1882, § 3180. And see Turley v. Taylor, 6 Baxt. (Tenn.) 386; Gidionsen v. Union Depot R. Co., 129 Mo. 392, 31 S. W. 800; Fretwell v. Laffoon, 77 Mo. 27; Heath v. Scott, 65 Cui. 548, 4 Pac. 557; Zimm'erer v. Fremont Nat Bank, 59 Neb. 661, 81 N. W. 849; Thompson v. Connell, 31 Or. 231, 48 Pac. 467, 65 Am. St. Rfep. 818. 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. There does not seem anything technical or peculiar in the word "surprise," as used in courts of equity. Where a court of equity relieves on the ground of surprise, it does so upon the ground that the party has been taken unawares, and that he has acted without due deliberation, and under confused and sudden impressions. 1 Story, Eq. Jur. § 120, note.

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 bcen 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 Trials, 521.

The act or state of being taken unawares; sudden confusion or perplexity.

1. In equity is not a technical teim. Johnson's common definition explains it: the act of taking unawares; the state of being taken unawares; sudden confusion or perplexity. When equity relieves for surprise it is on the ground that the party has been taken unawares, has acted, without due deliberation, under confused and sudden impressions. Loosely used, the word may presume or import "fraud;" in accurate usage it refers to something done which, as being unexpected, misleads or confuses on. the sudden, and thus operates as a fraud. 2 Compare Mistake. 2. In statutes providing for amendments of pleadings at trial, and the granting of new trials: such variance between the allegations and the proofs as misleads the opposite party in maintaining his action or defense on the merits. It constitutes a material variance which the party is not prepared to meet and could not expect.' One remedy for a surprise is a motion for a new trial.* The surprise for which a court will set aside proceedings, fair and regular on their face, which have resulted in vesting rights to realty in a purchaser, must be a legal surprise, without fault in the person alleging it.^ It must be absolutely impossible for the adverse party to be taken by surprise by an amendment which does not touch the merits or substance of a cause. ^ A modification, not a change, in the cause of action, is allowed — any alteration, indeed, which does not affect the identity of the transaction.' See Allegation.

This word, as verb and noun, is used without material departure from its vernacular meaning, in treating of granting new trial or equitable relief on the ground of surprise. Proof that a party was surprised — that is, was taken unawares, by some act or event which he could not reasonably be expected to foresee, and for not preparing against which he is not in fault — is ground, in a proper case, on a motion and allowing a caitse to be tried again; also, it will warrant a court of equity, much as proof of f i-aud or mistake might do, in relieving a party from a transaction into which he was betrayed by the surprise.