Carson v. Henderson

• Decision Date: 04 December 1885
• Court: Kansas Supreme Court
• Parties: CARSON, PIRIE, SCOTT & CO., et al., v. C. M. HENDERSON & CO

8 P. 727

34 Kan. 404

CARSON, PIRIE, SCOTT & CO., et al., v. C. M. HENDERSON & CO

Supreme Court of Kansas

December 4, 1885

Error from Atchison District Court.

THE facts are stated in Henderson v. Stetter, 31 Kan. 56, et seq., and in the opinion herein. Immediately after the reversal of the judgment in Henderson v. Stetter, supra, the plaintiffs in error filed in the district court a petition for a new trial upon the ground of newly-discovered evidence. Trial upon this petition August 2, 1884, when the application for a new trial was denied. This ruling Carson, Pirie, Scott & Co. and Wm. Ziock & Co. bring here for review.

Judgment affirmed.

Jackson & Royse, for plaintiffs in error.

T. M Pierce, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This case was before the court in 1883, upon the question of priority between attaching creditors, when it was here adjudged that the attachment liens of the present plaintiffs were subsequent to the lien of the defendants, and the judgment of the court below was reversed. (Henderson v Stetter, 31 Kan. 56, 2 P. 849.) Following immediately upon the reversal, Carson, Pirie, Scott & Co. and Wm. Ziock & Co. filed in the district court a petition applying for a new trial upon the ground of newly-discovered evidence, which they alleged could not, by reasonable diligence, have been discovered by them and produced at the original trial. A trial upon this petition was had before the court on August 2, 1884, when the application for a new trial was denied; and on this ruling error is assigned. In the action brought by C. M. Henderson & Co. against N. Stetter they alleged in their petition that their claim against Stetter was due and payable, and in the affidavit filed by them to obtain an order of attachment, it was stated "that said claim is just, due, and wholly unpaid;" and the order of attachment was issued by the clerk of the district court, as upon a claim that was then due and payable. The plaintiffs now claim that since the trial of the motion in this case, and on December 19, 1883, they first discovered evidence tending to show that the claim of C. M. Henderson & Co. was not due when the attachment suit was begun. Assuming that this testimony came to the knowledge of the plaintiffs since the former trial, that it is material, and that it is not cumulative, it does not necessarily follow that they are entitled to a new trial. It has been repeatedly held by this and other courts that before a new trial will be granted upon the ground of newly-discovered evidence, it must affirmatively appear that it was through no want of diligence on the part of those applying for the new trial that the evidence was not earlier discovered and produced at the trial. (Swartzel v. Rogers, 3 Kan. 374; Smith v. Williams, 11 id. 104; Boyd v. Sanford, 14 id. 280; Mitchell v. Stillings & Fenlon, 20 id. 276; Clark v. Norman, 24 id. 515; Moon v. Helfer, 25 id. 139; Sexton v. Lamb, 27 id. 432; Board of Regents v. Linscott, 30 id. 241; Wilkes v. Wolback, 30 id. 376.)

Was reasonable diligence exercised by these plaintiffs? Upon this question the court below found against them, and it appears to us from the record that the new testimony ought to have been known to the plaintiffs before the trial, and that no sufficient excuse has been shown for failing to procure it. It appears that the attachment suits of the creditors of N Stetter were begun in December, 1879. After orders of attachment had been sued out by all the parties now before the court, and on January 26, 1880, N. Stetter filed an answer in the case of C. M. Henderson & Co., alleging that the goods and merchandise, for the price of which the action was brought, had been purchased on credit, and that the indebtedness was not due when the action was commenced. On January 29, 1880, Stetter filed a motion to dissolve the attachment issued at the instance of C. M. Henderson & Co., upon the ground that their cause of action against him had not accrued when the action was instituted. By this answer and motion the plaintiffs and all attaching creditors were put upon inquiry in regard to the maturity of the claim of C. M. Henderson & Co. Notwithstanding that their intention was thus challenged, it seems that but little if any effort was made by the plaintiffs to ascertain whether or not the claim was due. One of the counsel for the plaintiffs testifies that he took the deposition of N. Stetter, Max Stetter, Mrs. Stetter, and one Stein, who was clerking for Stetter, and endeavored to obtain some knowledge of the books of N. Stetter with reference to his purchases during the summer and fall preceding the failure, but that he was unable to get any trace or knowledge of the whereabouts of the books until about two months before the application for a new trial. It does not appear, however, that any inquiry was made of these witnesses respecting the claim of C. M. Henderson & Co.; nor does it now appear that the status of the claim could have been learned from Stetter's books. Failing to learn the condition of the...