Bailey, Wood & Co. v. Landingham

• Decision Date: 04 December 1879
• Citation: 52 Iowa 415,3 N.W. 460
• Court: Iowa Supreme Court
• Parties: BAILEY, WOOD & CO., APPELLANTS, v. TILMAN LANDINGHAM AND OTHERS, APPELLEES.

52 Iowa 415

3 N.W. 460

BAILEY, WOOD & CO., APPELLANTS,

v.TILMAN LANDINGHAM AND OTHERS, APPELLEES.

Supreme Court of Iowa.

Filed December 4, 1879.

Appeal from Harrison district court.

Petition for a new trial under the provisions of section 3154 of the Code, on the ground that fraud was practiced on the court by the successful party. A demurrer to the petition was overruled. There was a trial to the court, and the petition dismissed. The plaintiffs appeal.Barnhart & Caldwell, for appellants.

L. R. Bolter, for appellees.

SEEVERS, J.

The original action was brought to foreclose a mortgage. The defence pleaded was that the mortgaged premises, or a portion thereof, constituted the defendants' homestead, and that Mrs. Landingham never signed nor executed the mortgage. There was a trial on such issue, and witnesses were introduced by both parties. The fraud is alleged to have been perpetrated because the evidence of the plaintiffs' witnesses was false and fraudulent. The mortgage was given to one George M. Poe, and he testified on the trial on the part of the plaintiffs. His evidence was contradictory to the evidence of the defendants' witnesses. It is alleged in the petition there were other persons present when the mortgage was executed, who were not introduced as witnesses on said trial, who will testify to the same facts as did the said Poe. It is, therefore, expected to establish the fraud by a preponderance of evidence. The newly discovered evidence is cumulative in character. A new trial is not usually granted for the purpose of introducing such evidence; but, conceding there are cases where it would be proper to do so, and that due diligence was used to discover and procure the evidence, we are of the opinion a new trial should not be granted because it is stated in the petition “that the fact that any of the several persons hereinbefore named were so present (at the time the mortgage was executed) did not come to their (plaintiffs') knowledge until about the close of the trial.”

This constitutes a clear and distinct admission that the plaintiffs knew before the close of the trial that there were other persons present than said Poe and the defendants' witnesses when the mortgage was executed. Due diligence required that an effort should have been made to procure the attendance of such persons. If this were impossible, or could not with proper efforts be accomplished, an application for a continuance should have been made. This was...