B.S. Flersheim Mercantile Co. v. Gillespie
| Decision Date | 08 June 1904 |
| Citation | 77 P. 183,14 Okla. 143,1904 OK 50 |
| Parties | B. S. FLERSHEIM MERCANTILE CO. v. GILLESPIE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Assignments of error presented in a motion for a new trial and relied upon for a reversal in the Supreme Court, which do not appear in the record as shown by the case-made, will not be considered by this court. Statements of counsel in their brief as to the existence of such errors will not be taken as evidence of the fact, unless the same is shown by the case-made as signed by the judge and certified to by the clerk.
2. Before a motion for a new trial on the ground of newly discovered evidence will be sustained, it must appear that such evidence could not have been discovered before the trial by the use of reasonable diligence.
3. The affidavits on such motion must contain the facts which show such diligence, and the mere assertion that all reasonable diligence was used is insufficient.
Error from District Court, Blaine County; before Justice James K Beauchamp.
Action by the B. S. Flersheim Mercantile Company against Ed Gillespie. Judgment for defendant, and plaintiff brings error. Affirmed.
This case was originally brought in the justice court before Victor Payne, a justice of the peace, at Watonga, Blaine county, Okl., to recover for a balance due on account from Ed Gillespie, the defendant, to the B. S. Flersheim Mercantile Company, plaintiff. The case was tried in justice court with a jury, which trial resulted in a verdict in favor of the defendant. An appeal was taken to the district court of Blaine county, and on the 26th day of March, 1903, was tried before a jury. Plaintiff introduced its evidence. Defendant demurred to the evidence, which demurrer was sustained by the court. The jury were instructed to bring in a verdict for the defendant, to which action plaintiff objected. Objection overruled, and exceptions saved. Judgment rendered against the plaintiff for costs, from which judgment plaintiff in error appeals to this court, motion for a new trial having been filed and overruled.
Lookabaugh Bros., for plaintiff in error.
Hotchkiss & Emery, for defendant in error.
IRWIN J. (after stating the facts).
Plaintiff in error complains of the action of the court in overruling the motion for a new trial, and the first assignment of error is that the court erred in not granting a new trial for the particular reason that the court abused its discretion by compelling plaintiff to go to trial without the personal attendance of witnesses who had been subp naed, but who were not in attendance. The record in this case shows the following on page 6 of the case-made: "That afterwards and upon the 26th day of March, 1903, said cause came regularly on for hearing in the district court of Blaine county, Oklahoma Territory, a jury having been again demanded by the defendant, a true, full, correct, and complete transcript of the record in said proceeding as reported by the official stenographer of said court, together with depositions introduced by the plaintiff upon said trial, is in words and figures as follows, to wit." Then follow the title of the court, and the name of the parties, and the term of court. Then the record proceeding is as follows "Counsel for plaintiff here make their opening statement of their case to the court and the jury, which is as follows." Then follows the opening statement of counsel for plaintiff. The record then shows the following "Counse...
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