Boyer v. Champeny

• Citation: 300 P. 1069,133 Kan. 434
• Decision Date: 03 July 1931
• Docket Number: 29,875
• Parties: CHARLES GLENTON BOYER and THOMAS MARVIN BOYER, Appellants, v. CHARLES CHAMPENY and KATE E. CHAMPENY, Appellees
• Court: United States State Supreme Court of Kansas

300 P. 1069

133 Kan. 434

CHARLES GLENTON BOYER and THOMAS MARVIN BOYER, Appellants, v. CHARLES CHAMPENY and KATE E. CHAMPENY, Appellees

No. 29,875

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Appeal from Sumner district court; GEORGE J. BENSON, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEW TRIAL--Application by Petition--Time for Filing. A petition for a new trial under R. S. 60-3005 should not be considered if filed more than one year after the final judgment was rendered.

2. SAME--Application by Petition--Evidence Considered. In passing on a petition for a new trial, authorized by R. S 60-3005, the court should consider the pleadings and evidence offered on the trial as well as that offered in support of the petition for the new trial, on the same basis as though it were offered on a motion for a new trial.

3. SAME--New Evidence--What Constitutes. In passing on a motion or petition for a new trial because of newly discovered evidence, the new evidence offered should be material, ordinarily it should not be merely cumulative or impeaching, and a showing should be made that with reasonable diligence it could not have been discovered and presented at the trial.

4. SAME--New Evidence--Sufficiency. Evidence offered in support of a petition for a new trial, together with that offered at the trial, considered with the pleadings and held that the refusal to grant the new trial was not error.

T. A. Noftzger, George W. Cox, Lawrence Weigand and A. Cale Blakely, all of Wichita, for the appellants.

E. J. Taggart, John Bradley, both of Wellington, W. L. Cunningham, D. Arthur Walker, Fred G. Leach and William E. Cunningham, all of Arkansas City, for the appellees.

OPINION

HARVEY, J.:

This is an appeal from an order of the court denying a petition for a new trial, which was predicated on newly discovered evidence.

In form the action was to quiet title to real property, but essentially involved the construction of certain deeds. An allied case was here before (Boyer v. Champeny, 125 Kan. 319, 263 P. 1066), which was an appeal from a survey made to locate a certain corner. In that case it was sought to have the court construe certain deeds referred to in the opinion, but the court held the surveyor had no jurisdiction to construe ambiguous deeds of conveyance to determine the intention of the parties thereto and if the parties desired such deeds interpreted it should be done in an appropriate action brought therefor. Following the decision of this court in that case this action was brought.

An island in the Arkansas river and a mill property referred to in the former opinion were owned by one Georgianna Nevins, who, in September, 1899, conveyed a part thereof to C. S. Griffith, describing the property in controversy as follows:

"Commencing fifty feet south of the dam and headgate in the mill race or cut-off west of island No. 1 in the SE 1/4 of sec. 36, twp. 31 S., range 2 east; thence running north along said mill race or cut-off to a point within ten (10) rods of the west end of the dam at waterline across the Arkansas river; thence east to the Arkansas river; thence northerly along said river to the dam; then south along said mill race or cut-off to the place of beginning. . . ." (Italics ours.)

This was the first time the ownership of the mill property on the island had been divided. Previous to that time all of it had been owned by one person. Defendants hold under mesne conveyance under this deed. Later Georgianna Nevins conveyed the balance of the island, and through mesne conveyance plaintiffs claim under those deeds. The descriptions in those deeds need not be set out here. The controversy in this case is with respect to what the parties to the deed of September, 1899, meant by the words "the west end of the dam at waterline across the Arkansas river." Plaintiffs contended that after the dam was built, about 1876, several hundred feet of the south or west end of it had been covered by sand, and that the parties to the deed in question, by the use of the language of the deed of September 4, 1899, referred to a point on the dam at waterline across the Arkansas river as it was then located and which was then visible to the parties. Defendants contended that the south or west end of the dam, as constructed in 1876, was visible to the parties at the time of the deed of September, 1899, and was the point referred to in that deed. The real controversy hinged around those contentions. If plaintiffs' contentions were found to be correct their land would extend several hundred feet further north than it would if the defendants' contentions were established. The tract was deemed valuable because of underlying oil. The action was tried to the court, which made exhaustive findings of fact and conclusions of law, and specifically found that in September, 1899, the south or west end of the dam, as originally constructed in 1876, was plainly observable, and that it was the end of the dam referred to in the deed in question. Plaintiffs appeared to be satisfied with the findings and judgment of the court and did not file the ordinary motion for a new trial. Within a few days before the expiration of a year from the date of the judgment plaintiffs filed a petition for a new trial on the ground of newly discovered evidence. Such petition is authorized by our statute (R. S. 60-3005), which reads as follows:

"Where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the...