Gregg v. Bankhead

• Decision Date: 01 January 1858
• Citation: 22 Tex. 245
• Parties: JOHN GREGG, EXECUTOR, v. RICHARD BANKHEAD.
• Court: Texas Supreme Court

22 Tex. 245

JOHN GREGG, EXECUTOR,

v.RICHARD BANKHEAD.

Supreme Court of Texas.

1858.

An application for a rehearing, after the term at which judgment has been rendered on the ground of newly discovered testimony, is properly dismissed, where it appears that the facts, to which it is proposed the witness should testify on another trial, transpired between the witness and the party; and that his attorney knew of the materiality of the witness, and neither attempted to obtain his testimony, nor to postpone the trial until it could be procured.

The want of recollection of a fact, which, by due attention, might have been remembered, is not such newly discovered evidence, as will entitle the party to a new trial.

See this case for facts, showing such want of diligence in presenting grounds for new trial, as would be deemed manifestly insufficient, even if made during the term; and more conclusively so, on an application made after the term, not until the petitioner had prosecuted an appeal from the judgment, to a final judgment in this court.

This case is not distinguishable, in principle, from the case of Cook v. Garza, 13 Tex. 431.

APPEAL from Freestone. Tried below before the Hon. Charles A. Frazer.

Action by appellant against the appellee. The petition, filed May 5th, 1857, sought to obtain a new trial, in a case determined between the appellee and the plaintiff's testator, in the district court of Freestone county, which was instituted on the eighth day of November, 1854, by Richard Bankhead, against William G. Kolb, now deceased, for damages for certain alleged trespasses, committed by the defendant on the land of Bankhead, in causing timber to be cut on the same, etc. This cause was tried and determined at the spring term of said district court, 1856, and judgment rendered for the plaintiff therein, for the sum of one hundred dollars, and costs of suit. The defendant in that suit, prosecuted an appeal to the supreme court; the judgment was in that court affirmed on the 3d day of January, 1857, and execution issued thereon, on the 3d day of January.

On the 6th day of February, the defendant, Kolb, made affidavit to the original petition, in this case, which sought, as well to enjoin the said execution, as to obtain a new trial in the case, and before the filing thereof, died; and the appellant as executor of his last will and testament, on the 18th day of April, 1857, made oath to a supplemental petition attached to the original; and the said petitions, with accompanying exhibits, were filed at the date before stated. The writs prayed for (enjoining and superseding the execution) were ordered to issue by the district judge, at chambers. Fiat dated April 30th, 1857.

The petition, prepared by Kolb in his life-time, alleged that, since the termination of said suit, he had discovered new evidence, which, if it had been before the jury on the trial of the said cause, would have changed the result, and exculpated him from the charges contained in the plaintiff's petition. The said petition alleged as follows: “Your petitioner further shows to your honor, that he used all the diligence in his power, to make a proper defense to his case, and did not know that the witness, who has, since the trial, informed your petitioner of the new evidence, that was so important in the trial of his cause, was in possession of said facts. And your petitioner failed to ascertain the said facts, because the said witness, Campbell, was absent from this state” (the witness whose testimony is claimed to be newly discovered) “for some time previous to, and after the trial; and petitioner knew not where he was, until after the cause had been tried, and judgment entered.

Petitioner would further show, that the gist of said cause was, the charge of petitioner's suffering one Wood, a wagon maker, to cut timber upon the land of Bankhead, who was a witness against petitioner, in said cause; whose testimony, as recited in the statement of facts agreed upon by counsel, is herewith filed, marked ‘A,’ and prayed to be made a part of this bill; that wrong has been done him; and that this newly discovered evidence of said Campbell, would have changed the verdict in his favor, could it have been before the court and jury trying said cause.”

Prayer for injunction, restraining the collection of the judgment, a review thereof, that the same be set aside, and a rehearing of the whole matter granted.

An additional petition, filed with the foregoing, by the appellant, averred the belief of the petitioner, that the affidavit of Campbell, filed with the same, was a true statement of the facts, at the time the witness, Wood, cut the timber; which cutting was charged in the petition against Kolb, as a trespass against Bankhead, by the defendant; that the said affidavit showed, that witness had made himself responsible for the timber cut outside of the land of Kolb, to whomsoever the timber, so cut, might belong; that Wood was indirectly testifying in his own favor; that Campbell was a man more reliable, as to veracity, than Wood; that the difference in character of the two men, would make a difference in favor of Campbell, before any intelligent jury; that he (appellant) was the attorney of the defendant, Kolb, in the said cause, and that Kolb had always asserted to him, that he had never given any authority to Wood to cut timber, where the same was cut on Bankhead's land; and believed, if a new trial is granted, he could obtain a verdict in his favor.

The statement of facts, as agreed upon by the attorneys in the suit, tried and determined as aforesaid, was attached to this petition, and contained the testimony of the witness, Wood, tending to establish the fact that he, Wood, had contracted with the defendant, Kolb, for timber suitable for wagon making, and that Kolb pointed out to him the land on which he might obtain it; that he accordingly cut it; and that the defendant's son-in-law, and the defendant, hauled the same away for him to town.

By other testimony it was shown that the timber was cut upon the land of Bankhead.

The affidavit of Campbell, referred to in the petition, made the 6th day of February, 1857, stated, that William G. Kolb agreed to sell timber to William S. Wood and himself, and they were cutting up the third tree, when Kolb came up, and manifested great surprise. He told them they were not cutting timber off his (Kolb's) land; must desist cutting there, and go east of where they were, so as to be certain that the timber cut would be on his (Kolb's) land. Wood told Kolb that he thought they were still on his (Kolb's) land, telling him that he had seen the lines, some half mile north of where they (Wood and affiant) were cutting. Landon Walker, who was present, also told them, that he thought they were on Kolb's land. Kolb persisted in saying, that he thought we were not on his land, saying he did not know where the line was, and requesting us again...