Caravelis v. Cacavas

Citation38 Idaho 123,220 P. 110
PartiesWILL CARAVELIS and MARGARET CARAVELIS, Appellants, v. TOM CACAVAS, Respondent
Decision Date01 November 1923
CourtUnited States State Supreme Court of Idaho

EVIDENCE-SUFFICIENCY-TESTIMONY ELICITED BY COURT-STRIKING-REOPENING CASE - ADDITIONAL EVIDENCE - NEW TRIAL - NEWLY DISCOVERED EVIDENCE-LIKELIHOOD OF CHANGE IN RESULT-REASONABLE DILIGENCE-DISCRETION OF LOWER COURT-ABUSE.

1. Evidence examined and held sufficient to sustain judgment.

2. Reversible error cannot be predicated on action of trial judge in striking answers of witness to questions put by him where substantially the same testimony was given in answer to questions of counsel.

3. Error cannot be predicated on refusal to reopen case for additional evidence after close of trial. Remedy is motion for a new trial.

4. A new trial will not be granted on ground of newly discovered evidence unless it appears reasonably probable that a different judgment would result.

5. Where one of two litigants, jointly interested, knew before the trial that a person, alleged to be a newly discovered witness, had knowledge of the transaction upon which the action is based, reasonable diligence is negatived.

6. An order denying a new trial should be reversed only upon clear showing of abuse of discretion.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action to adjudge deed a mortgage. Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent.

Roy L Black and F. M. Bistline, for Appellants.

The evidence is insufficient to support the findings of fact, conclusions of law and judgment entered thereon. (23 C. J. 40.)

The newly discovered evidence was material and sufficient to demand a new trial. (Wood Live Stock Co. v. Woodmansee, 7 Idaho 250, 61 P. 1029; McAllister v. Bardsley, 37 Idaho 220, 215 P. 852; State v. Lumpkin, 31 Idaho 175, 169 P. 939; Vickers v. Philip Carey Co., 49 Okla. 231, 151 P. 1023, L. R. A. 1916C, 1155, and notes on pages 1162, 1194 and 1198; State v. DeMarias, 27 S.D. 303, Ann. Cas. 1913D, 154, and note on page 157, 130 N.W. 782; Adams Oil Co. v. Stout, 19 Ky. Law Rep. 758, 41 S.W. 563; Brennan v. City of Seattle, 39 Wash. 640, 81 P. 1092; Means v. Yeager, 96 Iowa 694, 65 N.W. 993; Boggess v. Read, 83 Iowa 548, 50 N.W. 43; Murray v. Weber, 92 Iowa 757, 60 N.W. 492; City of Des Moines v. Frisk, 176 Iowa 702, 158 N.W. 590; State v. Evans, 98 Ore. 214, 192 P. 1062, 193 P. 927; Lee v. Braggman, 39 S.D. 175, 162 N.W. 788; Johnson v. Commonwealth, 126 Va. 770, 101 S.E. 341; King v. Beaumier, 26 Wyo. 35, 174 P. 612; Spencer v. State (Tex. Cr.), 153 S.W. 858, 46 L. R. A., N. S., 911.)

Jones, Pomeroy & Jones, for Respondent.

The granting or denying of a new trial is in the sound discretion of the court. (Hall v. Jensen, 14 Idaho 165, 93 P. 962.)

An appellate court will not disturb the judgment of a trial court because of conflict in the evidence when there is sufficient proof if uncontradicted to sustain it. ( Sweeten v. Ezell, 30 Idaho 154, 163 P. 612; Davenport v. Burke, 27 Idaho 464, 149 P. 511; Lambrix v. Frazier, 31 Idaho 382, 171 P. 1134.)

The affidavits on a motion for a new trial on the ground of newly discovered evidence must contain the facts which show the use of reasonable diligence to discover such evidence before trial, and a mere assertion that all reasonable diligence was used is insufficient. (Wilkes v. Wolback, 30 Kan. 375, 2 P. 508; Pinschower v. Hanks, 18 Nev. 99, 1 P. 454; Twine v. Kilgore, 3 Okla. 640, 39 P. 388; Amonson v. Stone, 30 Idaho 656, 167 P. 1029.)

Newly discovered evidence, which would not be decisive upon another trial, is insufficient to require a reversal and order for a new trial. (Turner v. Stevens, 8 Utah 75, 30 P. 24; Clements v. Stapleton, 136 Iowa 137, 113 N.W. 546; Wilson Exr. v. Keckley, 107 Va. 592, 59 S.E. 383; Baumgarten v. Hoffman, 9 Utah 338, 34 P. 294.)

"Evidence known to one of the joint parties is not newly discovered evidence." (Lee Kinsey Imp. Co. v. Jenks, 13 Colo. App. 265, 57 P. 191.)

MCCARTHY, J. Budge, C. J., and Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, J.

This action was brought by appellants Caravelis against their nephew, respondent Tom Cacavas, for the purpose of obtaining a decree declaring a warranty deed for 160 acres of land near Pocatello, executed by them to him, to be a mortgage. From a judgment for respondent and an order denying the motion for a new trial this appeal is taken. The principal assignments of error and the only ones which we will specifically mention are (1) that the evidence is insufficient to support the findings and judgment of the court to the effect that the deed was intended to be an absolute conveyance and not a mortgage, (2) error in sustaining a motion to strike part of the witness Valentine's testimony, (3) error in denying appellants' motion to reopen the case for the introduction of newly discovered evidence of M. E. Hughes and Gust Babalis, and (4) error in denying appellants' motion for a new trial on the ground of newly discovered evidence.

"In a suit in equity, as well as in an action at law, a finding of fact made by the trial judge, who has had the benefit of observing the demeanor of witnesses upon the stand and of listening to their testimony, will not be disturbed, because of conflict, if the evidence in support of the finding, if uncontradicted, is sufficient to sustain it." (Davenport v. Burke, 30 Idaho 599, 167 P. 481; Lambrix v. Frazier, 31 Idaho 382, 171 P. 1134; Harvey v. Brett, 36 Idaho 126, 209 P. 209; Bedal v. Smith, 36 Idaho 797, 214 P. 213.) The testimony of respondent, if uncontradicted, would be sufficient to sustain the findings and judgment. It is true that both appellants and two of respondent's brothers contradicted him, testifying to facts tending to prove that the deed was intended as a mortgage. The preponderance of evidence does not, however, depend upon the mere number of witnesses. We have carefully examined the entire record. No useful purpose would be served by a detailed analysis of the evidence. Suffice it to say that there is sufficient evidence, within the meaning of the well-established rule above quoted, to sustain the findings and judgment.

The witness Valentine was asked to state a conversation which occurred between himself and respondent in regard to the transaction. There seemed to be some doubt in the mind of the trial judge as to whether the witness was giving the substance of the conversation or merely his own impression. Therefore the judge examined the witness himself. At the conclusion of this examination he struck all of the testimony elicited by his own questions on the ground that it proved the witness' own deductions rather than any specific conversation. However, practically every answer that the witness gave to the judge's questions is substantially covered by answers given to the attorneys upon direct and cross-examination, and it is perfectly clear that only the answers given to the judge's questions were stricken. We conclude that the action of the court in striking the answers elicited by the judge cannot be held to be prejudicial or reversible error.

The motion to reopen the case was made some time after the close of the trial, after the court had given consideration to the case and was apparently about ready to decide it. Exactly the same questions are raised by the motion for a new trial. Under these circumstances it could not be reversible error for the trial court to refuse to reopen the case. Even if the evidence were newly discovered within the meaning of our statute, and the failure to discover it before were not attributable to any lack of diligence on appellants' part, nevertheless the orderly procedure was to enter judgment, and permit the matter to be raised on a motion for a new trial.

On the trial at least four witnesses testified that respondent stated to them the deed was not intended as an absolute conveyance but as a mortgage. In support of a motion for a new trial appellants produced the affidavits of M. E. Hughes and Gust Babalis who both swore that respondent made similar statements to them, and that they did not inform appellants of this before the trial. Respondent insists that this evidence, even if newly discovered, could not be ground for a new trial because it is purely cumulative. Appellants, on the other hand, contend that the newly discovered evidence does not pertain to some collateral or incidental matter, but goes to the very gist of the case. They also contend that it is of a different grade or character in that the evidence produced upon the trial was that of the appellants, who are interested parties, and that of respondent's two brothers, who were shown to be hostile to him, while the newly discovered evidence is that of disinterested, impartial witnesses not shown to be hostile to respondent. The granting of a new trial upon the ground of newly...

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