Blackburn v. Crowder

• Decision Date: 15 March 1887
• Docket Number: 12,592
• Citation: 10 N.E. 933,110 Ind. 127
• Parties: Blackburn v. Crowder et al
• Court: Indiana Supreme Court

10 N.E. 933

110 Ind. 127

Blackburn v. Crowder et al

No. 12,592

Supreme Court of Indiana

March 15, 1887

From the Greene Circuit Court.

Judgment affirmed.

M. F Dunn and G. G. Dunn, for appellant.

J. C Briggs and W. C. Hultz, for appellees.

OPINION

Elliott, C. J.

The appellees obtained a new trial upon a complaint filed after the term. The appellant unsuccessfully demurred to the complaint.

One of the grounds upon which the complaint is assailed is, that the newly discovered evidence is cumulative, but we think this ground not tenable. The newly discovered evidence was of an independent and distinct fact, the existence of an account book which had been concealed from the plaintiff, and is not, therefore, within the rule declaring that a new trial will not be granted where the newly discovered evidence is merely cumulative. Hines v. Driver, 100 Ind. 315; Rains v. Ballow, 54 Ind. 79.

It is true that the newly discovered evidence tended to contradict and impeach the appellant, but it did much more than this, for it tended to establish a material fact, namely, the existence of the appellant's account book in which there were entries directly sustaining the appellees' theory. Where evidence proves a distinct and material fact, a new trial can not be denied because the evidence may have the additional effect of impeaching the testimony of the party against whom it is offered.

In defending the complaint against the objection that diligence was not shown, counsel refer us to the exhibit containing the evidence given on the former trial, but this reference will not avail the appellees. The evidence may be made an exhibit, but the exhibit performs no other office than that of bringing the evidence into the record; it does not supply any averments essential to the validity of the complaint, for these must be made in the body of the pleading. In Hines v. Driver, supra, it was said: "While we hold that the affidavits and the bill of exceptions containing the evidence given on the former trial may be made exhibits, we hold, also, that they are only part of the pleading, for the single purpose of showing the former evidence and the newly discovered evidence. * * They can not be resorted to for the purpose of aiding the complaint in any other particular; their effect must be confined to a statement of the original and the newly discovered evidence; all the other facts essential to the validity of the complaint must be stated in the body of that pleading as in ordinary cases." The question whether diligence is shown must, therefore, be determined from the allegations in the body of the complaint, and is not to be ascertained by a search through the mass of evidence embodied in the exhibit.

The averments of the complaint upon this subject are these "That it became and was a material question upon the trial of said cause whether said $ 1,179 had been paid by the plaintiffs to the defendant; that the only evidence introduced by the plaintiffs, as shown by the bill of particulars filed herewith, marked exhibit 'A,' which contains all the evidence introduced upon said trial, was the...