Fisk v. Fehrs

• Decision Date: 22 November 1915
• Citation: Fisk v. Fehrs, 32 N.D. 119, 155 N.W. 676 (N.D. 1915)
• Court: North Dakota Supreme Court

155 N.W. 676

32 N.D. 119

W. E. FISK v. WM. FEHRS and Mrs. Wm. Fehrs

Supreme Court of North Dakota

November 22, 1915

Appeal from the District Court of Adams County, Crawford, J. Action in claim and delivery. Appeal from an order denying a motion for a new trial on the ground of newly discovered evidence and also from the original judgment. Judgment for defendants. Plaintiff appeals.

Affirmed.

Lewis W. Bicknell and O. H. Aygarm, for appellant.

The applicant for a new trial on the ground of newly discovered evidence must show due diligence in his attempt to prepare for the former trial; such evidence must not be merely cumulative, and it must be material, and of such weight as to lead to the belief that a different result would be reached on a new trial. 29 Cyc. 881 et seq., 906; Perry v. Cedar Falls, 87 Iowa 315, 54 N.W. 225.

For the purposes of the motion the newly discovered evidence must be regarded as true. Goldsworthy v. Linden, 75 Wis. 24 43 N.W. 656.

It is immaterial that the new facts go to prove some point in issue at the former trial. Such is not the test of the question as to the propriety of granting a new trial. Waller v Graves, 20 Conn. 305; Guyot v. Butts, 4 Wend 579; Parker v. Hardy, 24 Pick. 246; Smith v. Meeker, 153 Iowa 655, 133 N.W. 1058.

Even though the evidence appears to be cumulative, still if it is of such apparent strength that it would be likely to produce a different result, the new trial ought to be granted. Wilson v. Seaman, 15 S.D. 103, 87 N.W. 577; St. Paul Harvester Co. v. Faulhaber, 77 Neb. 477, 109 N.W. 762; Parsons v. Lewiston, B. & B. Street R. Co. 96 Me. 503, 52 A. 1006, 12 Am. Neg. Rep. 38; Cleslie v. Frerichs, 95 Iowa 83, 63 N.W. 581; 49 Cyc. 916, and cases cited under note 98.

Boehm & Jackson, for respondents.

It is the rule that a new trial will not be granted on cumulative or impeaching evidence, unless it is so strong that it would lead to a different result. The trial court must be satisfied on this point, and its ruling, ordinarily, will not be disturbed. Libby v. Barry, 15 N.D. 286, 107 N.W. 972; Smith v. Mutual Cash Guaranty F. Ins. Co. 21 S.D. 433, 113 N.W. 94.

The offered newly-discovered evidence must tend to prove or disprove some material issue in the case. If it relates to mere collateral matters, it is not sufficient. State v. Brandner, 21 N.D. 310, 130 N.W. 941; Ernster v. Christianson, 24 S.D. 103, 123 N.W. 711; Breeden v. Martens, 21 S.D. 357, 112 N.W. 960; Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419; Lunschen v. Ullom, 25 S.D. 454, 127 N.W. 463; Oberlander v. Fixen, 129 Cal. 690, 62 P. 254.

The court is without jurisdiction to consider this appeal. The notice of appeal and undertaking must be served within year from the notice of entry of judgment. This was not done. Wilson v. Kryger, 26 N.D. 77, 51 L.R.A. (N.S.) 760, 143 N.W. 764.

After a judgment has been entered and satisfied by the defeated party, he cannot bring up to the appellate court for review an extinguished judgment. Re Black, 32 Mont. 51, 79 P. 554; Borgalthous v. Farmers' & M. Ins. Co. 36 Iowa 250; Smith v. Patton, 128 Ala. 611, 30 So. 582; Plano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N.W. 85.

BRUCE, J. FISK, Ch. J., did not participate, and W. L. NUESSLE, District Judge, sat in his stead.

OPINION

Statement of facts by

BRUCE J.

This is an action in claim and delivery against the alleged vendee of personal property to recover the possession of the same under a claim of ownership in the plaintiff, and not in the vendor. The property was brought to Adams county, North Dakota, in the month of April, 1910, by Irl V. Fisk, the son of the plaintiff and appellant, W. E. Fisk.

The question at issue is whether the property belonged to the son, Irl V. Fisk, and was sold by him to the defendants and respondents, Wm. Fehrs and Mrs. Wm. Fehrs, or belonged to his father, the appellant, W. E. Fisk. A verdict in the case was rendered for the defendants and judgment for the costs of the action entered thereon on the 27th day of December, 1912. On the 20th day of January, 1913, this judgment was paid by the plaintiff and the satisfaction entered of record. On the 7th day of October, 1913, a motion for a new trial was made on the ground of newly discovered evidence; the affidavits in support of and in opposition to the same being as follows:

"W. E. Fisk, being first duly sworn, deposes and says that he is the plaintiff in the above-entitled action, that at the trial of said action before this court, this plaintiff contended that he was the owner of certain articles of personal property described in the files herein, and the defendants contended that they had become the owners of the same by purchase from one Irl V. Fisk, in whose possession this plaintiff had left the property; that said Irl V. Fisk was a material witness on the part of this plaintiff, and that before the commencement of this action and while the same was pending, this plaintiff made inquiries as to the whereabouts of this said Irl V. Fisk, by going personally to his last known place of residence, near Grand River, Perkins county, South Dakota, and there making inquiries of person residing near by; that affiant addressed letters to the said Irl V. Fisk, at Grand River, South Dakota, and Hettinger, North Dakota, but that the same were unanswered; that said Irl V. Fisk is the son of affiant, and that affiant was unable to learn of his whereabouts from the fall of 1910 until the 1st of August, 1913, when the said Irl V. Fisk was ill in a hospital at the city of Superior, in Douglas county, state of Wisconsin, and sent to affiant for aid. Affiant further states that he is informed and believes, and on such information states, that if a new trial of this cause be granted by the court, the said Irl V. Fisk will testify that this plaintiff never gave to him the property in question in this suit; that he, the said Irl V. Fisk, never sold or transferred or in any way disposed of the same, or any part thereof, to the defendants, but that, as appears from his affidavit herein, he was frightened by the representations and statements of defendant, and left the state of South Dakota and county of Perkins, wherein he resided. Affiant further states that this affidavit is made for the purpose of securing a new trial of the above-entitled action. Further affiant saith not."

Affidavit of Mary Fisk: "Mary Fisk, being first duly sworn, deposes and says that she is the mother of Irl V. Fisk, and the wife of the above-named plaintiff; that from and after the month of December, 1910, she had no knowledge of the whereabouts of said Irl V. Fisk, until about the 1st of August, 1913, when she was informed that he was sick in a hospital in Superior, Wisconsin, where she later found him; that of her own knowledge she knows that the said W. E. Fisk, the plaintiff above named, made continual efforts to find said Irl V. Fisk, and requested affiant to write letters making inquiry as to his whereabouts; that affiant wrote letters to A. L. Fisk, Clinton, Iowa and T. Fisk, La Porte, Indiana, and Superior, Wisconsin, making inquiry as to the whereabouts of said Irl V. Fisk, but that she was unable to learn where he had gone. Further affiant saith not. "

Affidavit of Lewis W. Bicknell: "Lewis W. Bicknell, being first duly sworn, deposes and says that he is one of the attorneys for the plaintiff in the above-entitled action, and was present and conducted the trial thereof at the city of Hettinger, North Dakota, before this court, at an adjourned term thereof, on or about the 18th day of November, 1912 that said trial resulted in a verdict in favor of the defendant on all the issues; that the above-entitled action involved the question of the ownership of certain articles of personal property, and, as will more fully appear from the files of said action, of record in this court, the question before the court was whether, as a matter of fact, said articles of personal property were sold to the defendants by one Irl V. Fisk, and whether the said property was given to said Irl V. Fisk by the plaintiff herein; that Irl V. Fisk was a material witness on the part of the plaintiff, and that at the time of commencing this action, and before the trial thereof, the plaintiff made efforts to locate said Irl V. Fisk, but that the whereabouts of said Irl V. Fisk were to plaintiff unknown. Affiant further states that he himself made inquiries as to the whereabouts of said Irl. V. Fisk, by going personally to his last-known address, and there making inquiry of one Henry Stolzenburg, of Grand River, Perkins county, South Dakota, and of Adolf Frahm, of the same place, and of Mrs. Fehrs, one of the defendants in the above-entitled action, and of George W. Becker at Hettinger, North Dakota, and at the post office or store at Grand River, South Dakota, but affiant could not learn where the said Irl V. Fisk then was. Affiant further states that he is informed and believes, and on such information and belief states the fact to be, that the said Irl V. Fisk will testify that the plaintiff herein never gave the articles of personal property described in the files of this case to him, the said Irl V. Fisk, and that he, the said Irl V. Fisk, never sold the same, or any part thereof, to the defendants or either of them; that the testimony is material to this cause, and, as shown herein, and by the accompanying affidavits of Irl V. Fisk, Mary R. Fisk, and W. E. Fisk, could not have been produced at the former trial of this cause; that this evidence is newly discovered by plaintiff, the circumstances of which more fully appear in the accompanying affidavits. That this affidavit is made by affiant for the purpose of moving for a new trial in the above-entitled action. Further deponent saith not."...