Aylmer v. Adams
| Decision Date | 15 April 1915 |
| Parties | R. AYLMER v. O. O. ADAMS |
| Court | North Dakota Supreme Court |
On petition for rehearing May 18, 1915.
From an order for a new trial of the District Court of Ward County Leighton, J.
Plaintiff appeals.
Affirmed.
Nestos & Carroll, for appellant.
The showing made on motion for new trial on the ground of newly discovered evidence should be viewed with suspicion and closely scrutinized, and such motion should be granted only when due diligence is shown by the moving party, and it should also appear that the alleged new evidence would or ought to bring a different result before another jury. Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419; Evans v. Parrott, 26 Ark. 600; Camp Mfg. Co. v Parker, 121 F. 195; Caller v. Shields, 2 Stew. & P. (Ala.) 417; Johnson v. Offut, 2 MacArth, 168; Griggs v. Gear, 8 Ill. 2; Rowan v. First Nat. Bank, 112 Ill.App. 434; Lancaster v. Springer, 126 Ill.App. 140; Karsten v. Winkelman, 126 Ill.App 418; Schaefer v. Wunderle, 154 Ill. 577, 39 N.E. 623; Cole v. Littledale, 164 Ill. 630, 45 N.E. 969; Carneal v. Wilson, 3 Litt. (Ky.) 90; Pfeltz v. Pfeltz, 1 Md.Ch. 455; Hollingsworth v. M'Donald, 2 Harr. & J. 230, 3 Am. Dec. 545; Burch v. Scott, 1 Gill & J. 393; Hodges v. Mullikin, 1 Bland, Ch. 503; Stockley v. Stockley, 93 Mich. 307, 53 N.W. 523; Vaughan v. Cutrer, 49 Miss. 782; Watkinson, v. Watkinson, 68 N.J.Eq. 632, 69 L.R.A. 397, 60 A. 931, 6 Ann. Cas. 326; Wiser v. Blachly, 2 Johns, Ch. 488; Traphagen v. Voorhees, 45 N.J.Eq. 41, 16 A. 198; Kennedy's Estate, 15 Pa. Co. Ct. 494; Conrad v. Conrad, 9 Phila. 510; Proudfit v. Picket, 7 Coldw. 563; Frazer v. Sypert, 5 Sneed, 100; Young v. Henderson, 4 Hayw. (Tenn.) 189; Hill v. Bowyer, 18 Gratt. 364; Campbell v. Campbell, 22 Gratt. 649; Whitten v. Saunders, 75 Va. 563; Kern v. Wyatt, 89 Va. 885, 17 S.E. 549; Heermans v. Montague, 2 Va.Dec. 6, 20 S.E. 899; Baker v. Watts, 101 Va. 702, 44 S.E. 929; Amiss v. McGinnis, 12 W.Va. 371; Long v. Granberry, 2 Tenn.Ch. 85; Ricker v. Powell, 100 U.S. 104, 25 L. ed. 527; Diamond Drill & Mach. Co. v. Kelley Bros. 138 F. 833; Poole v. Nixon, 9 Pet. 770, appx. 9 L. ed. 305, F. Cas. No. 11,270; Gould v. Tancred, 2 Atk. 533.
It should also appear that such evidence could not have been discovered before by the use of due diligence. Story Eq. Pl. 10th ed. § 414; Dexter v. Arnold, 5 Mason, 312, Fed. Cas. No. 3,856; Hughes v. Jones, 2 Md.Ch. 289; Perkins v. Partridge, 30 N.J.Eq. 559; Young v. Keighly, 16 Ves. Jr. 348; Hitch v. Fenby, 4 Md.Ch. 190; Adler v. Van Kirk Land & Constr. Co., 114 Ala. 551, 62 Am. St. Rep. 133, 21 So. 490; Wiser v. Blachly, 2 Johns. Ch. 488; Nichols v. Nichols, 8 W.Va. 187.
This rule not only applies to the party moving, but also to his attorneys and agents, since notice to either is notice to the party. Norris v. LeNeve, 3 Atk. 26; Stockley v. Stockley, 93 Mich. 307, 53 N.W. 523; Morrison v. Carey, 129 Ind. 277, 28 N.E. 697.
Deficiency of proof is not ground for a new trial; neither will a new trial be granted to permit a witness to testify to facts forgotten or overlooked, or to which his attention was not called. Goose River Bank v. Gilmore, 3 N.D. 191, 54 N.W. 1032; 29 Cyc. 896-898, 907, 989 et seq.; Burson v. Dosser, 1 Heisk. 763; Smith v. Rucker, 95 Ark. 517, 30 L.R.A. (N.S.) 1030, 129 S.W. 1079; State v. Stowe, 3 Wash. 206, 14 L.R.A. 906, 28 P. 337.
A new trial will not be granted on new evidence which is merely impeaching in character. Brennan v. Goodfellow, Iowa , 96 N.W. 962; Traphagen v. Voorhees, 45 N.J.Eq. 41, 16 A. 198; Boyden v. Reed, 55 Ill. 458; Adamski v. Wieczorek, 93 Ill.App. 357; Karsten v. Winkelman, 126 Ill.App. 418; Dixon v. Graham, 16 Iowa 310; Foy v. Foy, 25 Miss. 207; Kern v. Wyatt, 89 Va. 885, 17 S.E. 549.
Or for merely showing subornation of perjury of witnesses. Society of Shakers v. Watson, 23 C.C.A. 263, 47 U.S. App. 170, 77 F. 512; 2 Enc. Pl. & Pr. 580; Story Eq. Pl. §§ 414 and 418; Evans v. Parrott, 26 Ark. 600.
Palda, Aaker & Greene and I. M. Oseth, for respondent.
The question of jurisdiction is nowhere discussed or urged in the appellant's brief, and is therefore taken to be abandoned. Foster County Implement Co. v. Smith, 17 N.D. 178, 115 N.W. 663; Kelly v. Pierce, 16 N.D. 234, 12 L.R.A. (N.S.) 180, 112 N.W. 995; Pendroy v. Great Northern R. Co., 17 N.D. 433, 117 N.W. 531; State v. Wright, 20 N.D. 216, 126 N.W. 1023, Ann. Cas. 1912C, 795.
The supreme court gains jurisdiction of an appeal only when the record and appeal papers are filed with the clerk thereof. Stierlen v. Stierlen, 8 N.D. 297, 78 N.W. 990.
In a motion for a new trial on the ground of newly discovered evidence, the test is whether or not such newly discovered evidence ought to change the result on another trial before another jury, and that it in all reasonable probability would bring such results. The mere fact that it is cumulative is immaterial. Pengilly v. J. I. Case Threshing Mach. Co., 11 N.D. 249, 91 N.W. 63, 12 Am. Neg. Rep. 619; Wilson v. Seaman, 15 S.D. 103, 87 N.W. 577.
The presumption is that the determination of these questions by the trial court was correct unless it is otherwise clearly shown. Hall v. The Emily Banning, 33 Cal. 522, and cases cited; People v. Sutton, 73 Cal. 243, 15 P. 86; Longley v. Daly, 1 S.D. 258, 46 N.W. 247; Spottiswood v. Weir, 80 Cal. 448, 22 P. 289; Grace v. McArthur, 76 Wis. 641, 45 N.W. 518; Gaines v. White, 1 S.D. 434, 47 N.W. 524.
The alleged new evidence will be taken as true unless clearly contradicted. Re McClellan, 21 S.D. 209, 111 N.W. 540.
False swearing may be ground for new trial, especially where such matters are very material and such fact is clearly established. O'Hara v. Brooklyn Heights R. Co., 102 A.D. 398, 92 N.Y.S. 777; Chapman v. Delaware, L. & W. R. Co., 102 A.D. 176, 92 N.Y.S. 304.
This is an appeal from an order of the district court of Ward county granting a new trial for newly discovered evidence. The case was tried to a jury and a verdict returned in favor of the plaintiff for $ 1,785.46. Judgment was entered pursuant to the verdict on March 14, 1913. Several affidavits were submitted in support of the motion for new trial. The newly discovered evidence is set forth in the affidavit of McKenzie St. Clair, a witness who testified in behalf of the plaintiff upon the trial of the action. This affidavit is as follows: "McKenzie St. Clair, being first duly sworn, deposes and says that he resides at Minneapolis, Minnesota, and that he is acquainted with the plaintiff and the defendant in the above-entitled action; that he remembers the transaction in his office in Minneapolis, Minnesota, at the time the plaintiff and defendant were both in his office at the time the purported note was alleged to have been signed by O. O. Adams, and that he is the identical party whose name appears as witness on said 'Exhibit A;' that plaintiff, R. Aylmer, at the time mentioned, had desk room in affiant's office; that a few days prior to the purported date of the purported note, 'Exhibit A, both the plaintiff and defendant were in affiant's office, and went from there to Iowa for the purpose of completing a trade of some land for some horses, and that on or about the date of said 'Exhibit A' they had some conversation in affiant's office, but so far as this affiant overheard the conversation between the plaintiff and defendant, there was no note mentioned at this time, either by the plaintiff or defendant, but after they had been in conversation for a short time the plaintiff laid the paper 'Exhibit A on affiant's desk, and asked him to sign same; that when the paper was laid on affiant's desk he took up his pen and signed his name; that he did not notice, and does not now know, whether the name of O. O. Adams was signed on said paper at the time he signed his name thereto; that during the time the plaintiff and defendant were in his office he saw the defendant, O. O. Adams, sign one paper, and that he did not see him sign any other paper, and that he did not at that time sign more than one paper; that on that date affiant had been around the city of Minneapolis quite a good deal, and had, at that time, drank considerable liquor, and was not in a position to observe closely, and because of his condition he signed 'Exhibit A' without knowing whether the name of some other person was signed thereto at that time; that after signing his name to said paper he got up and left the office and left the paper lying on his desk; that affiant is not physically strong, and that liquor has the effect of making him very careless and destroys his power of observation, and when in that condition from drink, he is liable to and does do things without thought and without the proper precaution, and very often to his own material and serious detriment, and that in such condition at one time a bill of sale was presented to him for signature, and without observing what it was because of his condition from drink, he signed said instrument and thereby disposed of $ 300 worth of property without consideration, and which he did not in any way intend to sell; that in a conversation with the plaintiff, R. Aylmer, because of the fact that the defendant, Adams, was going to Minneapolis to complete for him a trade in which this affiant was interested, affiant asked Aylmer regarding this man Adams, and whether or not he was acquainted with him, to which plaintiff replied that very few men were better acquainted than he and Adams, and that at one time, he, Aylmer, had charge of Adams's business, and that Adams was in the habit of handing him his check book, and he, Aylmer, drew checks and signed Adams's name thereto; that at the time 'Exhibit A' was dated, the plaintiff and defendant had returned from Iowa and...
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