페이지 이미지
PDF
ePub

Cuyaboga Common Pleas.

“New Trial-Complaint.-An application for a new trial on the ground of newly discovered evidence, made after the term at which a trial of an action has been had, is a new and independent proceeding and is by complaint, which must state the evidence given on the trial and that newly discovered, and an issue must be formed, tried, and determined, and the evidence upon such trial, to become part of the record, must be made so by bill of exceptions.”

In the opinion, on page 230, I find this language :

“When the application is made after the term by a complaint, the proceeding is a new and independent one, and cannot be fastened upon the former proceeding, which had already resulted in a judgment, and was no longer pending in court. The application, when made after judgment and at a subsequent term of the court, must, as we have seen, be regarded as an independent proceeding, and must set out the issues upon the former trial and the evidence given on such trial, with the newly discovered evidence. An issue must be formed on the complaint and the issue thus formed must be tried by the court. Upon such trial the plaintiff should introduce in evidence the record of the former trial, prove what the evidence was upon such trial, the newly discovered evidence, and show that it had been discovered since the term when the case was formerly tried, what diligence he had used to discover the evidence before the former trial.”

The statute upon which this decision is predicated is precisely similar to our own, being found on page 215, of Garvin & Hord's Statutes of Indiana, the edition of 1862.

The only difference that I am able to discover between that statute and our own is that the Indiana statute contemplates the filing of an answer. Our statute dispenses with the filing of an answer but provides that the issue shall be complete upon the filing of the petition. I think the issue is as complete in the one instance as in the other. That is to say, by intendment of law the issue is made up by force of the statute and without answer. So that it seems to me, that the mere additional feature in the Indiana statute providing for an answer, does not essentially change the nature of the issue; as, for instance, the issue which our code makes as to any affirmative averment in a reply is as complete as an issue made by a distinct pleading. Hence, I think there is nothing in that difference between the Indiana statute and ours, that would vary the operation of the principle or change it in the least.

Later, or earlier rather, in 25 Ind., 236, and also in 61 Ind., 104, the same doctrine is announced, the same practice followed and approved under the Indiana statute.

In Nebraska they seem to have a statute, or had a statute very similar to our own, which is found in the common statutes of the state of Nebraska, 1881, in the published edition of 1887, sec, 318, page 780:

Briggs v. Rowley.

"Section 318. Newly discovered grounds.-Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered or made, the application may be made by petition filed as in other cases; on which a summons shall issue, be returnable and served, or publication made as prescribed in sec. 79. The facts stated in the petition shall be considered as denied without answer," (Being the same in that respect, and practically in all other respects, as in our own statute.) " and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases, but no such petition shall be filed more than one year after the final judgment was rendered."

In Axtel v. Warden, 7 Neb., 186, it is held in the second branch of the syllabus :

“In such case, the law requires the moving party to show that he has exercised reasonable diligence to discover and produce such evidence at the trial; and his failure to do so, deprives him of all claim to a new trial.”

Also the third branch of the syllabus :

“The petition is liable to demurrer, if it does not state facts suffi. cient to entitle him to a new trial, when they are admitted to be true.”

And on page 189, the court say:

"Now in view of those general principles in regard to an application by motion for a new trial on the ground of newly discovered evidence, it seems very clear that when the application is made by petition; under section 318 of the civil code, the party must state in his petition facts, which, if admitted to be true, constitute sufficient grounds to grant a new trial; and the facts must be affirmatively stated, and not merely upon information.

“If any other rule were adopted it would open the door to endless applications for new trials."

The implication from that language is, that the facts averred in the petition must be of such character as, if admitted to be true by demurrer, they will entitle the party pleading, to a new trial. Now to that, it would seem to be necessary that these facts must appear: It must be apparent upon the face of the pleadings what the facts are ; next, upon the substance of the petition, what the evidence addressed to these was; next, the newly-discovered evidence which the party, by the exercise of ordinary care and diligence, was unable to discover.

Those three facts would make up a sufficient case upon which the party might ask for a new trial. Then the court might say: This being the evidence, and this being newly discovered evidence, by applying ihe

Cuyaboga Common Pleas.

Dewly discovered evidence to the other already adduced, the court could determine whether a new trial ought to be granted.

The only averments of the petition here are averments of newly discovered evidence, without averments of evidence or statements produced at the former trial. But there is a conflict of authority on this question. I find that in Iowa the Supreme Court have taken precisely the opposite ground. The statute in Iowa, sec. 3116, of the revision of 1860, statutes of general nature of the state of Iowa, page 577, is precisely, in legal effect, our own statute, even to the very feature that the allegations of the petition shall be deemed denied, without answer. I find it unnecessary to read it, because it is in almost exactly the same phraseology as our own statute.

In Stineman, Exr., etc., v. Beath, 36 Iowa, 73, the Supreme Court has had occasion to give construction to that statute ; and I read the first branch of the syllabus :

"New trial-Newly discovered evidence.—While a new trial will not be granted on the ground of newly discovered evidence, which is merely cumulative, it may be thought in some respects, the evidence is cumulative, if it in any degree has an independent and distinct bearing on the issue." (I read this by way of introduction.)

I now read the second branch of the syllabus:

“ Contents of petition-Practice.-In an application for a new trial on this ground, the petition therefor need not set out the evidence introduced on the trial. It need only show the facts upon which the new trial is asked, the same as in other cases, and the issues thereon are to be tried as in ordinary proceedings."

So that case is distinctly to the effect that the evidence adduced at the former trial need not be set out. I am unable to find that statutes of similar purport have been passed upon elsewhere than in the states which I have named. The weight of opinion and authority would seem to be, taking the Indiana courts which, by three distinct adjudications, have given construction to this statute, together with the holding in the Supreme Court of Nebraska, supplemented and reinforced by the able opinion of Judge Okey--the weight of authority would seem to be that it is necessary to set up not only the issues but the evidence adduced at the former trial. And the better reason would seem to lie along that line because by reason of death or resignation of the judge who sat at the formal trial it would be impossible for another judge to determine the question unless the exact facts and evidence adduced at the former trial were set out. But I find it unnecessary in this case to pass finally upon that question or to give any opinion that shall be decisive in this respect because there is another consideration upon which this petition must be disposed of independently of the sufficiency of the allegations of the petition and that is, in the character of the newly discovered evidence. With respect now to the testimony of A. D. Leisy

Briggs v. Rowley.

It will be observed that the testimony referred to, is calculated to impeach or throw discredit upon his (Leisy's) testimony in the former trial. The question made in the former case was, whether a contract had been made between Briggs and Mrs. Rowley upon the terms of which he was to bid off that property for her. Mr. Leisy testified to such facts directly. In addition thereto, as a sort of reinforcement of his statement, he testified not only that such contract existed, but that he, in pursuance of that fact, had come up to bid upon that property but was prevented from so doing, by the agreement with Mr. Briggs. Observe the primary fact. Mr. Leisy's ability or lack of preparation to make a valid case is incidental to that main issue. Whether he was able to bid or unable to bid, would be immaterial if the contract was niade.

Now it is averred in the petition, and it is now urged, that Mr. Leisy did not, in fact, have a thousand dollars which he got from the insurance company; that he did not, in fact, have drafts to the amount of $1,800 or thereabouts; that he had not arranged with the bank to get the money and perfect his purchase by means of disposing of other property. All tending to show that Mr. Leisy did not state the facts in this case.

It is argued that Mr. Leisy, while he was present during a part of tbe hearing, did not take the witness stand; and it is urged that it is a sort of admission of the truth of the depositions that Mr. Leisy should appear in opencourt and that he should remain silent under a charge of having committed deliberate perjury.

Now newly discovered evidence, to warrant the granting of a motion for a new trial, according to Baylies on New Trials and Appeals, page 525, I read the heading on page 524, is :

“Motion for a new trial on the ground of newly discovered evidence.--To constitute a case for a new trial upon the ground of newly discovered evidence, it must appear that the evidence has been discovered since the trial and that the evidence is material to the issue, and goes to the merits of the case, and not merely to impeach a former witness."

Our Supreme Court in Reed, etc. v. McGrew, 5 Ohio St., 376, 387, in the opiniop of Judge Hitchcock, say:

“Another reason urged for a new trial is the discovery of evidence, since the trial, material to the case. This newly discovered evidence is not evidence, the effect of which will be to prove new and distinct facts, but rather to prove facts by a new witness, which were testified to by other witnesses on the trial, and also to prove circumstances which will have a tendency to invalidate the testimony of one of the defendant's witnesses. This court will not grant a new trial to give a party the opportunity of introducing cumulative testimony merely, or to give him the opportunity of impeaching the witnesses of his adversary.”

That may be said, however, to be a mere dictum.

a

[ocr errors]

Cuyahoga Common Pleas.

In Carpenter v. Coe, 67 Barb., 411, the syllabus reads:

“Newly discovered evidence which goes to discredit a witness is not a ground for a new trial. Evidence which is onty material or admissible to contradict the evidence of a witness, and to render him unworthy of confidence, is insufficient."

The same doctrine is held in 3 Johns., 255; 4 Johns., 425; 11 Barb., 216, and 42 Barb., 24, where in the last branch of the syllabus we read :

“Where the newly discovered evidence tends to impeach the character of a witness a new trial should not be gratned.”

The same is also held in 1 Lansing, page 71. And I find the general resume of holdings on this subject, in Amer. & Eng. Ency. Law, page 572 :

When the new evidence only tends to discredit or impeach an opposing witness, it will not avail as ground for a new trial.”

As supporting the doctrine of the text a large number of cases are here cited, and the states are arranged alphabetically. I notice Ohio does not appear in the column; but there appears to be entire unanimity in New York, Georgia, Indiana, and especial reference is made to several cases, a sentence or two of which I shall read :

“Newly discovered evidence going merely to the credit of a witness, even of a sole witness, is not cause for a new trial.”

Held in Hunt v. State, 81 Ga., 140: “Whether this rule would be departed from where the verdict was rendered upon the sole testimony of the adverse party: Quaere. It clearly ought not to be where such testimony, though the principal evidence in the case was supported by other evidence; nor where the party seeking the new trial had good reason to expect that the adverse party would be the principal witness in the case, and did not use reasonable diligence, to ascertain his reputation for veracity, and to be prepared to impeach him." Tappin v. Clark, 32 Conn., 367.

It results, I think, by a very singular unanimity of authority, that even if it be true that the averments of the petition are sufficient to constitute ground for granting a new trial, that if the character of the newly discovered evidence merely tends to impeach that of a witness upon a former trial, it is not, therefore, newly discovered evidence within the meaning of the term.

The contention of the defendant to this record is well taken, and, therefore, no new trial can be granted upon these allegations.

The next subject to which this petition is addressed is newly discovered evidence with regard to misconduct or alleged misconduct of the prevailing party and the jury.

Briggs testifies that he did not discover the facts which are made the basis of this allegation, until the mouth of November, 1889. They are, therefore, if established, newly discovered evidence in that sense.

« 이전계속 »