Braithwaite v. Aikin

• Decision Date: 22 June 1891
• Citation: 2 N.D. 57,49 N.W. 419
• Parties: Braithwaite v. Aikin et al., (Rea et al. Intervenors.
• Court: North Dakota Supreme Court

2 N.D. 57

49 N.W. 419

Braithwaite

v.Aikin et al., (Rea et al. Intervenors.¹

Supreme Court of North Dakota.

June 22, 1891.

Syllabus by the Court.

1. Affidavit held insufficient to justify the granting of a new trial on the ground of newly discovered evidence.

2. To warrant the granting of a new trial on such grounds, affidavits must show such new facts as will probably lead to a different result on a new trial.

3. The facts must be established by the affidavits of persons who are personally familiar with them. It is not sufficient to set forth that another will testify to these facts or some of them. The affidavit of such person showing what he personally knows about them must be produced, unless some strong reason is shown why this requirement should be dispensed with.

4. Applications for new trial on this ground are looked upon with disfavor and distrust.

5. Although the trial court has large discretion in awarding or refusing new trials, which will not be interfered with except in case of abuse, yet, when a new trial is granted upon a particular ground, there must be some legal evidence that such cause for a new trial exists, and the ground must be a legal ground for granting a new trial.

Appeal from district court, Burleigh county; Walter H. Winchester, Judge.George W. Newton, for appellant Braithwaite. Louis Hanitch, for intervenors appellants. Jamison & Boucher and Francis & Barnes, for respondents.

Corliss, C. J.

The judgment in this litigation in favor of the plaintiff has already been affirmed by this court as to two of the defendants. Braithwaite v. Power, 48 N. W. Rep. 354. While the appeal of these two defendants was pending in this court, the remaining defendant, Harvey Harris, as administrator of the estate of Joseph Leighton, deceased, made a motion for a new trial on various grounds, which was granted not only as prayed for, but to the extent of destroying the entire judgment, not only as against Harris as administrator, but also as against the two defendants who previously had been unsuccessful in their efforts to secure a new trial, and who were at that moment challenging in this court the decision of the trial court refusing them this relief. The recitals in the order granting them a new trial, and the sweeping language of the order, force us to the conclusion that the trial court has assumed to grant a new trial as to defendants, over which it had no jurisdiction for that purpose, because they theretofore had removed the judgment and record to this court by appeal. We will not discuss the power of the trial court to render the judgment of this court nugatory before it is promulgated. We think the court erred in awarding the new trial, even assuming that the order affected the verdict and judgment only so far as the interests of the defendant Harris were concerned. While the motion was made upon several grounds, and while the order does not disclose the precise foundation on which it stands, yet we are relieved from the necessity of demonstrating that it can rest upon none of the grounds set forth in the notice of intention, with the single exception of the ground of newly-discovered evidence, by the concession of respondent's counsel that all other grounds are abandoned. The only defense which it can be claimed that the newly-discovered evidence would tend to establish is that of payment. The first paper which the record discloses is a petition made in form by Harris, the administrator, but, as it is verified by one of the attorneys for the administrator upon information and belief, it is difficult to see what weight is to be given it. Moreover, it contains nothing of importance, except the admission of Joseph Leighton in his life-time that he had paid the plaintiff's claim. We fail to see that this was an admission against his own interest. It would, indeed, be a novel rule that a new trial could be granted upon evidence which must be rejected when offered on trial as the worst form of hearsay. In the affidavit of W. B. Jordan there is a repetition of these solemn admissions of Leighton that he had settled the plaintiff's claim. The only pretense of any legal evidence of payment is a receipt claimed to have been found among the papers of Joseph Leighton after his death. It reads as follows: “St. Paul, Minn., October 19, 1883. $150.00. Received of Joseph Leighton one hundred and fifty dollars and 00-100, the same being in full for interest and profits in Str. Eclipse and F. Y. Batchelor to date. Jos. McC. Biggert.” What possible connection there is between the receipt and the claim of plaintiff, which is for freight for transporting army stores in 1880, it is impossible to conceive. No explanation is offered. The receipt refers expressly to interest and profits in steamers Eclipse and F. Y. Batchelor, and not to compensation for carrying freight for Leighton and others upon the steamers three years before. By its own terms it precludes the idea that it records a settlement of the claim in controversy in this action. It is clearly explained by the affidavit of Joseph McC. Biggert, who signed the receipt. His explanation is not controverted. He says that some time after the sale of the steamer Eclipse, in the spring of 1881, to Joseph Leighton, he was employed by Mr. Leighton as agent of that steamer, and of the steamer F. Y. Batchelor, at Bismarck, and that he was to be paid $150 per month, and one-eighth of the earnings of each of the boats, for his services; that he remained in the employ of Mr. Leighton under this contract during the season of 1881; and that in 1883, at the request of Mr. Leighton, he went to Fort Buford to close the books of these steamers for 1881; and that he finally accepted $150 in full for the balance of the salary due him, and gave the receipt in question. The force of this affidavit is sought to be destroyed by the assertion that Joseph McC. Biggert, who made the affidavit, would not be competent to testify to these facts, because they constituted transactions with and statements by the deceased, Joseph Leighton, and that the statute seals Biggert's lips as against the representatives of Leighton, he being interested, it is claimed, in the recovery. To support this view, respondent refers to section 5260, subd. 2, Comp. Laws. We do not think that the case falls within the statute. At common law, neither a party to a suit nor one not a party, but merely interested in the litigation, could be sworn as a witness. Our Code has abrogated this rule in sweeping terms, declaring in express language, not only that a party may be a witness, but that any one interested in the action may be allowed to testify. Both classes are expressly named in that portion of section 5260 which changes the old rule. But both classes are not expressly named in subdivision 2 of the same section, which qualifies the scope of this sweeping change. It is only a party who will not be permitted to testify as against the representatives of a decedent. Persons merely interested are not there mentioned. They stand, so far as this section is concerned, under the new rule enunciated in the first part of the section. They may testify in all cases without any such restriction. Parties and persons interested, it is declared, may testify in all cases; but parties only are declared incompetent to testify as against the representatives of a decedent. Interested persons are left under the new rule. Under statutes practically the same, the same conclusion has been reached. We cite the following cases in support of our decision that Joseph McC. Biggert, not being a party to the action, would be competent, under section 5260, subd. 2, Comp. Laws, to testify to the facts stated in his affidavits, however much he might be interested in the recovery: Berry v. Sawyer, 19 Fed. Rep. 289; Potter v. Bank, 102 U. S. 163. The action was not prosecuted for the immediate benefit of Biggert. However, it is only necessary to look upon the receipt alleged to have been newly-discovered to see that no court would be justified in submitting it to a jury as any evidence of payment, without evidence connecting it with plaintiff's claim in this case. Nor is it probable that the jury would have rendered a different verdict had the receipt been received in evidence and considered on the trial. No attempt is made to connect it with the plaintiff's claim, which forms the basis of this action, by any evidence that would be competent on a new trial. “The evidence must be such as to render a different result probable on a retrial. This is a consequence of the provision that the cause for which a new trial may be granted must be one materially affecting the substantial rights of the party. If there be no...