Cooper v. Vaughan
Decision Date | 31 March 1913 |
Citation | 155 S.W. 912,107 Ark. 498 |
Parties | COOPER v. VAUGHAN |
Court | Arkansas Supreme Court |
[Copyrighted Material Omitted]
Appeal from Prairie Circuit Court; Eugene Lankford, Judge; affirmed.
STATEMENT BY THE COURT.
At the September term, 1911, of the Prairie Circuit Court, appellant recovered a judgment against the appellee in the sum of $ 1,000. An appeal was taken and the judgment below affirmed by this court.
At the September term, 1912, of the Prairie Circuit Court the appellee filed his petition asking that the judgment be set aside and a new trial granted him upon the ground of evidence discovered after the term at which the former judgment was rendered and after the decision of the Supreme Court affirming that judgment.
The appellee alleged in his petition that at the former trial W H. Cooper testified that on or about the first of May, 1908 he was employed by Emmett Vaughan (appellee) to make an estimate of the Myer's Bend land, Vaughan agreeing to pay for his services the sum of $ 1,000; that while in the employ of Herman Romunder in January, 1908, and at his request, he made an estimate of the Myer's Bend land, knowing at the time that Romunder was on a deal for the same, and that three or four months after this he made the estimate for Mr Vaughan and turned the same over to him at the time the due bill was executed or just prior thereto, the due-bill being dated the 8th of May, 1908. That Cooper's testimony was corroborated by the deposition of Herman Romunder as to the number of acres of land, date of estimate, etc., he stating that the estimate was received through the office at Des Arc some time in January, 1908. That at the time he received said estimate he was negotiating with Vaughan for the land; that the first estimate he received did not contain any estimate of the lands west of White river, but only the Myer's Bend land; that the first estimate was received about two months prior to the second estimate, the second estimate being received in April or May, but that he thought his correspondence would show; that from a review of the testimony of W. H. Cooper and the deposition of Romunder it would be seen that the testimony of Cooper was based on the deposition of Romunder, and that W. H. Cooper's inspiration of another estimate of this land evidently grew out of the deposition of Herman Romunder; that, on the other hand, petitioner denied that said Cooper was ever employed by him to make an estimate of the timber referred to in Cooper's testimony; that the $ 1,000 for which Cooper sued him was for an estimate made by Cooper for Herman Romunder, the said estimate covering 1,900 acres, which included the Myer's Bend land and the land west of White river; that since the judgment of the Supreme Court was rendered Romunder had discovered a letter written by himself to Cooper which showed that he (Romunder) was mistaken in his testimony at the former trial, in which he testified from memory that Cooper was in his employ in January, 1908, and made an estimate of the timber for him at that time, and that Romunder would now testify that Cooper only made one estimate of the timber, and that said estimate was made in May, 1908, and that said estimate embraced 1,900 acres of land, 761 acres of which lay on the east of White river, in Woodruff County, known as the Myer's Bend land, the balance of the land lying west of the river, in Prairie County, Arkansas.
The petitioner further set up that Romunder had discovered an expense account, dated June 1, 1908, showing that on May 1 and 2, 1908, W. H. Cooper had incurred expense for estimating timber on Raft creek (being the name of the place west of White river where the lands were estimated), said expense account being signed and O. K.'d by W. H. Cooper. He had also discovered the original estimate of the timber, headed "Myer's Bend Estimate," and "This Side of Bayou Des Arc," said estimate embracing 1,900 acres of land, consisting of the Myer's Bend land and the land west of White river, signed by W. H. Cooper; that he had also discovered a letter from Cooper, dated May 10, 1908, making corrections in the estimate sent the preceding day.
The petition further alleged that Cooper testified on the former trial that the due-bill executed by Emmett Vaughan to him was for an estimate of nothing but the Myer's Bend land, and that this land was the only land he estimated for Vaughan.
The petition set up a memorandum executed by Cooper at the time the due-bill was executed, which reads as follows: "I agree that the due-bill given me this date by E. Vaughan for $ 1,000 to be void if sale of land fails to go through."
The petitioner alleged that the newly discovered evidence, above set forth, would show that the estimate was made for Romunder and not for Vaughan, and was for the entire 1,900 acres of land; that the testimony shows that only the Myer's Bend land of 761 acres had been sold.
The petition further alleged as follows:
The petition concludes with a prayer that the judgment be vacated and that he be granted a new trial, etc.
A general demurrer was filed to the petition, which was overruled. Appellant answered, and among other things, after admitting the former suit and judgment, he denied that the newly discovered evidence was material; denied that it would have changed the result of the trial; set up that appellee was fully advised by the testimony of appellant in the former trial as to what this cause of action was and the testimony upon which he relied to sustain it; that there was on the first trial of said cause a hung jury, and that the cause was continued from term to term until finally it was tried and a judgment rendered in favor of the defendant (in this case). The answer then set up the following:
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