Drespel v. Drespel

• Decision Date: 05 June 1935
• Docket Number: 3075.
• Citation: 45 P.2d 792,56 Nev. 368
• Parties: DRESPEL v. DRESPEL.
• Court: Nevada Supreme Court

45 P.2d 792

56 Nev. 368

DRESPEL v. DRESPEL.

No. 3075.

Supreme Court of Nevada

June 5, 1935

Appeal from District Court, ict Court, Washoe County; L. O. Hawkins Presiding Judge.

Action by Harry Drespel against Frances B. Drespel.Judgment for plaintiff, and, from orders denying a new trial and counsel fees and court costs in prosecuting motion for new trialdefendant appeals.

Affirmed in part; reversed in part and remanded.

R. K Wittenberg, of Reno, for appellant.

Platt & Sinai, of Reno, for respondent.

COLEMAN Justice.

Plaintiff recovered judgment in a divorce action.Defendant moved for a new trial upon the ground of newly discovered evidence and for counsel fees and court costs in prosecuting said motion for a new trial.The court denied all the motions, and the defendant has appealed.

We will first dispose of the appeal from the order denying the motion for a new trial.

Pursuant to our Civil Practice Act, a new trial may be granted upon the ground of newly discovered evidence which the moving party would not, with reasonable diligence, have discovered and produced at the trial.Section 8876, N. C. L.

Defendant's affidavit in support of her motion for a new trial, which was made and evidently prepared in New York, states that she had informed her attorney "of the facts of newly discovered evidence and of facts relating to the entire matter, and had been by him advised that she has proper and sufficient grounds for a new trial in said action and a meritorious defense thereto."

There is no statement of facts in the affidavit showing that reasonable diligence had been exercised by the defendant prior to the trial to discover the alleged facts contained in the affidavits of the respective affiants whose testimony it is sought to present upon a new trial, nor is there an intimation of such diligence.

The trial judge, in denying the motion for a new trial, held that all of the proposed new evidence, except that pertaining to a certain public record, was cumulative, and hence could not influence the court in passing upon the motion, if otherwise entitled to consideration.As to the matter of record which is kept pursuant to the law of New York, he seems to have been of the opinion that the defendant was chargeable with notice of it.It is a well-known rule of pleading that one cannot deny on information and belief matters of public record to which he has access.49 C.J. 266;1 Ency.Pl. &Pr. 813;Peacock v. U.S. (C.C.A.)125 F. 583;Harley v. Plant,210 N.Y. 405, 104 N.E. 946.

The record in question is alleged to have been made two months prior to the trial.The rule applicable to the situation presented is correctly stated in 46 C.J.p. 256, as follows: "The discovery after the trial * * * or of any other matters of public record, is not ground for new trial, unless, on diligent search in the proper office, such record was not discovered before the trial," citing, among others, New York cases.

The affidavits in the record, of the various witnesses, offered in support of the motion based on newly discovered evidence, were executed within a few weeks after the trial, which, of itself, indicates that reasonable diligence was not used prior to the trial to discover the evidence offered.46 C.J.p. 255.

This court, in Finschower v. Hanks,18 Nev. 99, 1 P. 454, 457, in passing upon the sufficiency of an affidavit offered in support of a motion for a new trial, based on the grounds of newly discovered evidence, said: "The statement in the affidavit of defendant's attorney, that 'he diligently searched for testimony to establish the defense made by the amended answer in this action,' and other like averments as to the diligence used by the defendant and the Coleman Bros., is too general.The acts performed by them should be particularly stated, so as to enable the court to determine whether the conclusions stated in the affidavit are supported by the facts.It is the duty of litigants to be active and diligent in procuring the testimony upon which they rely to maintain their cause.Trials are not to be encouraged as experiments.A party is not allowed to present his case by piecemeal; to take a part of the facts first, and then, if he fails, apply for a new trial, and seek to strengthen his case by a statement of other facts which were reasonably within his power to present at the first trial.He must make diligent search and inquiry in advance of the trial, and be able to show, to the satisfaction of the court, that he used reasonable diligence.'

In Robinson M. Co. v. Riepe et al.,37 Nev. 27, 138 P. 910, 913, in considering such an affidavit, the court said: "The declarations of diligence in this affidavit are mere conclusions, and set out no showing of diligence or facts which which diligence might be inferred.Where newly discovered evidence is asserted as grounds for a new trial, the affidavit of the moving party is the basic thing upon which a new trial may be granted, because it is that that a trial court must find the essential elements necessary to authorize it to act in granting a new trial, and, unless these essentials are set forth, the court is not warranted in disturbing the judgment.Ward v. Voris,117 Ind. 368, 20 N.E. 261.'

All of the so-called newly discovered evidence is of an impeaching character, as to which, as was observed in the case last cited, "the trial judge was in a position to know whether or not it was true, and his refusal to grant a new trial, if the proposed newly discovered evidence was of an impeaching nature, was no abuse of discretion.Whise v. Whise ,131 P. 967, 44 L. R. A. (N.S.) 689;Armstrong v. yakima Hotel Co. , 135 P. 233.'

But counsel for defendant calls our attention to the case of Beauley v. Beauley(Sup.)190 N.Y.S. 129, which he says is authority for the proposition that lack of diligence will not justify the denial of a new trial in a divorce case where the state is an interested party.

The facts of that case are very unusual.In fact, the court observed that even with due diligence the defendant could not have procured certain of the evidence she relied upon as a ground for a new trial.In any event, the reasoning of this court in the case of Pinschower v. Hanks, supra, quoted above, appeals to us as encouraging a wise policy even in divorce suits.In the instant case several of the affidavits relied upon were by relatives of the defendant, concerning a posted placard which any one might have put up; such evidence is too easily manufactured.Furthermore, the trial court had an opportunity to observe the defendant and her sister, who came...