Chambliss v. Hass

• Decision Date: 27 October 1904
• Citation: 101 N.W. 153,125 Iowa 484
• Parties: CHAMBLISS v. HASS.
• Court: Iowa Supreme Court

125 Iowa 484

101 N.W. 153

CHAMBLISS

v.HASS.

Supreme Court of Iowa.

Oct. 27, 1904.

Appeal from District Court, Muscatine County; D. V. Jackson, Judge.

The opinion states the case. Affirmed.

J. R. Williams and J. C. Coster, for appellant.

William Hoersch and Carskadden & Burk, for appellee.

WEAVER, J.

Benjamin Chambliss died intestate in the year 1899, and the appellee herein, J. H. Hass, was duly appointed administrator of his estate. Thereafter Jefferson Chambliss, a son of the intestate, brought suit against the administrator, claiming the ownership of certain promissory notes held by said administrator, and listed as a part of the assets of the estate of Benjamin Chambliss. Upon trial, judgment was rendered in favor of the claimant. Within less than one year from the date of said judgment the administrator filed a petition for new trial under the provisions of Code, tit. 20, c. 1, alleging the discovery of new and material evidence tending to show that the testimony offered upon the trial by said Jefferson Chambliss concerninghis alleged possession of the notes during the lifetime of his father was untrue, and that the gift or transfer to his son was never in fact consummated by delivery. The plaintiff's demurrer to this petition having been overruled, he filed an answer in the nature of a denial. In February, 1903, Jefferson Chambliss died, and his administrator was substituted as plaintiff. In April, 1903, plaintiff amended his answer to petition for new trial, alleging that, before said petition was filed, the defendant had appealed from the judgment of the district court to this court, where, on May 21, 1902, said judgment was duly affirmed, and that thereafter execution had been issued upon said judgment, and was returned by the sheriff on June 10, 1902, fully satisfied, for which reasons the trial court was without jurisdiction to entertain the petition for a new trial. To this amendment a demurrer was sustained, and trial was held to the court upon the issues presented by the petition and answer. The court found for the petitioner, and ordered a new trial, and plaintiff's appeal from this order is now before us.

1. Counsel have argued the sufficiency of the showing of newly discovered evidence as ground for a new trial, but we think it unnecessary for us to go into any review of the record on this point. The granting of a new trial is so peculiarly a matter within the discretion of the trial court that we will not interfere with such order, save where a clear case of abuse of judicial discretion is made out. In the case before us the principal testimony alleged to have been discovered was a letter said to have been written by Jefferson Chambliss, in which he admitted that the gift to him had never been consummated by delivery. If the letter was genuine, it went very far to prove that plaintiff's claim to the notes was unfounded, and was therefore an item of evidence of the highest importance in determining the truth of the controversy. The testimony bearing on the genuineness of the writing and on the matter of defendant's diligence in discovering it was for the consideration of the court, and its finding thereon is not so unreasonable or so without substantial support as to be held reversible error. In connection with this proceeding, plaintiff also moved to suppress the deposition of the witness, a sister of plaintiff, who produced the letter, and assigns error upon the overruling of the motion. Other rulings upon the admission of evidence are also complained of, but, without pausing to consider them separately, we are of the opinion that none of these objections are well taken.

2. The one serious question presented by this appeal is upon the ruling of the trial court sustaining defendant's demurrer to the plea setting up the appeal from the judgment in the main case, the affirmance of such judgment, and its subsequent payment, as a bar to the demand for a new trial. The contention of the appellant, that the appeal from the judgment in the principal case had the effect to deprive the trial court of jurisdiction to entertain the application for new trial, cannot be sustained. The right to petition for new trial within one year upon the grounds named in the statute is absolute and unqualified, and is wholly independent of the right of appeal. The proceeding involves no attempt to review the judgment which has been appealed from, nor to pass upon or take advantage of any alleged error in the record. It is in effect an independent proceeding, in which a new and different issue is joined and tried as an ordinary action. Code, §§ 4094, 4095. Bank v. Murdough, 40 Iowa, 26;Cook v. Smith, 58 Iowa, 607, 12 N. W. 617. In the last-cited case, after judgment rendered against them in the circuit court, the defendants filed a petition for a new trial, and, without waiting for a disposition of the petition, they also prosecuted an appeal to this court, where the judgment was affirmed. Pending the appeal, the plaintiff filed an answer setting up the pendency of the case in this court as a bar to the proceeding for a new trial, and a demurrer thereto was sustained. After the affirmance of the judgment on appeal the proceeding for a new trial was brought on for hearing, and a new trial granted, and, this order being appealed from, was by us affirmed, saying that “during the time limited by statute the power of the court and the right of the party are unconditional.” The case at bar is parallel with Cook v. Smith in every essential particular, except as relates to the payment and satisfaction of the judgment, the effect of which we shall hereinafter consider. The view we have indicated has the very general support of the authorities. Henry v. Allen (N. Y.) 41 N. E. 894; Hellman v. David Alder & Sons Clothing Co. (Neb.) 83 N. W. 846;Brooks v. Syndicate (Nev.) 53 Pac. 597;Naglee v. Spencer, 60 Cal. 10;Fuller v. United States, 182 U. S. 563, 21 Sup. Ct. 871, 45 L. Ed. 1230;State v. Cir. Court, 71 Wis. 595, 38 N. W. 192. In Fuller's Case a judgment in his favor was affirmed by the Circuit Court of Appeals (72 Fed. 467, 18 C. C. A. 641) and by the Supreme Court of the United States (18 Sup. Ct. 944, 168 U. S. 707, 42 L. Ed. 1215), and mandate returned to the trial court. A petition for new trial had been filed while the appeal was pending, and, after final order of affirmance had been entered, the trial court granted a new trial as prayed. Upon appeal from this order, the court, by Harlan, J., goes into an elaborate discussion of the statute providing for new trials, and of the precedents, including Cook v. Smith, and decides that the trial court acted within its jurisdiction. It says of the proceeding that it “is in form a new and independent suit, although the statute requires it to be heard summarily by the court,” and quotes approvingly from Ex parte Russell, 13 Wall. 664, 20 L. Ed. 632, the following pertinent language: “It has been objected that the granting of a new trial after a decision by this court is, in effect, an appeal from the decision of this court. This would be so if it were granted upon the same case presented to us. But it is not. A new case must be made; a case involving fraud or other wrong upon the government [the new trial in that case having been granted upon the application of the United States]. It is analogous to the case of a bill of review in chancery to set aside a former decree or a bill impeaching a decree for fraud.” In Henry v. Allen, supra, an appeal having been taken from the judgment of the trial court, and a proceeding having also been begun in that court for a new trial, the appellant moved the Court of Appeals to suspend further proceedings for the time being without prejudice to his rights in the premises, and to remand the case to the trial court in order that the application for a new trial might be disposed of. This motion was denied on the ground that the pendency of the appeal in no manner affected the right or jurisdiction of the lower court to proceed to hear and dispose of the application. In Brooks v. Syndicate, supra, a motion by appellee in the Supreme Court to dismiss the appeal because the appellant had applied for and obtained an order for a new trial in the court below was overruled, the court holding there was no such interference of jurisdictions, and no such inconsistency between the right to appeal and the right to apply for a new trial, that both might not be prosecuted to a termination. A like principle was applied by the West Virginia court in Gillespie v. Allen, 37 W. Va. 675, 17 S. E. 184. It is there held that where, pending an appeal, a bill of review has been filed in the lower court, based solely on the ground of newly discovered evidence, the questions presented to the two tribunals are...