Andis v. Richie

• Decision Date: 28 June 1889
• Docket Number: 13,540
• Citation: 21 N.E. 1111,120 Ind. 138
• Parties: Andis v. Richie
• Court: Indiana Supreme Court

21 N.E. 1111

120 Ind. 138

Andis v. Richie

No. 13,540

Supreme Court of Indiana

June 28, 1889

Petition for a Rehearing Overruled Sept. 27, 1889.

From the Hancock Circuit Court.

Judgment affirmed, with costs.

J. A New, A. M. New, J. W. Jones and R. Williamson, for appellant.

C. G Offutt, for appellee.

OPINION

Mitchell, J.

There was judgment in the court below against Andis, in an action of replevin brought by him against Richie, to recover the possession of a horse which the former charged that the latter unlawfully detained from him. The only question presented on this appeal involves the correctness of the ruling of the court in overruling a motion for a new trial, which was asked on the ground of newly discovered evidence.

The parties were at variance in their testimony, the plaintiff asserting that he had loaned the horse to Richie, while the latter testified that he had purchased the animal from Andis, and had agreed to pay a stipulated price, in clearing land for the plaintiff; that he had entered upon the work, and was ready to complete it within the time agreed upon. After the trial the plaintiff produced an affidavit in which the affiant deposed, that some time prior to the first trial he inquired of the defendant whether he had purchased the horse in controversy, to which the latter responded in the negative, adding that he was only breaking him for the plaintiff.

It also appears in the bill of exceptions that a witness, called by the plaintiff, testified at the trial that the defendant told him that he was breaking the horse for Andis.

Before this court would feel warranted in reversing a judgment for refusing a new trial on the ground of newly discovered evidence, it must be made to appear that the newly discovered evidence is of such a character as to render it probable that a different result would be produced if a second trial were had. This does not seem at all probable in the present case. The newly discovered evidence is not so essentially different from other evidence given at the trial as to make it of a controlling character. It is of the same kind and to the same point as other evidence already in the record, and assuming that the application shows that due diligence was used, the evidence proposed is in its nature merely cumulative, and is not of sufficient materiality to justify a reversal of the judgment.

After the motion for a new trial had been made, and...