Bertram v. State ex rel. Lowell Dredge Co.

• Decision Date: 12 January 1904
• Citation: 32 Ind.App. 199,69 N.E. 479
• Parties: BERTRAM et al. v. STATE ex rel. LOWELL DREDGE CO. et al.
• Court: Indiana Appellate Court

32 Ind.App. 199

69 N.E. 479

BERTRAM et al.

v.STATE ex rel. LOWELL DREDGE CO. et al.

Appellate Court of Indiana, Division No. 1.

Jan. 12, 1904.

Appeal from Circuit Court, Fulton County; A. C. Capron, Judge.

Independent action for a new trial by Sylvester Bertram and others against the state, on the relation of the Lowell Dredge Company and others. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.I. Conner and H. R. Robbins, for appellants. Holman & Stephenson and Nichols & Pentecost, for appellees.

BLACK, J.

In an action in the court below brought by the state, on the relation of the Lowell Dredge Company, one of the appellees, on the bond of Sylvester Bertram, one of the appellants, as commissioner for the construction of a certain ditch, to recover for the construction of the ditch pursuant to a contract therefor between the commissioner and the relator-the other appellants being the sureties upon the bond-the issues tried being upon an answer of payment filed by all the appellants, and a counterclaim of the principal obligor alleging overpayment, the plaintiff obtained a finding and judgment against the appellants for the full amount of the bond. The case at bar was an independent action brought by the appellants to obtain a new trial for newly discovered evidence which it was claimed supported the answer of payment. The other appellees were made defendants to this proceeding, apparently because one of them was the president and the other the secretary and treasurer of the dredge company. The court sustained a demurrer for want of sufficient facts to the complaint for a new trial, and this ruling is questioned here.

In this complaint it is not stated when the action on the bond was commenced, but it is shown that an amended complaint was filed therein April 22, 1901, and it appears that the trial was had October 9, 1901. The purpose of the evidence which it was claimed had been discovered was to prove certain payments made by the appellant Bertram. It is shown that he was himself a witness on the trial of the original action, and it does not appear that he did not himself know of the facts to which the newly discovered evidence related; but it was alleged that he did not know at the time of the trial, or until after the term at which it was held, that the persons whose affidavits were exhibited with the complaint knew of or remembered the facts, or that he could prove the same, except that, as to one of the persons whose affidavits were so produced, it was alleged that the person so furnishing an affidavit had learned the facts relating to a certain alleged payment since the term of the trial. It was alleged that the principal obligor had used due diligence to procure the testimony which it was claimed he could produce on another trial, and, by way of showing such diligence, it was averted that he was an invalid,...