Guth v. Bell
| Decision Date | 18 December 1911 |
| Citation | 133 N.W. 883,153 Iowa 511 |
| Parties | D. H. GUTH v. A. B. BELL, Appellant |
| Court | Iowa Supreme Court |
Appeal from Ida District Court.--HON. F. M. POWERS, Judge.
THIS is a proceeding commenced by petition for a new trial, filed within one year after rendition of judgment against the defendant; the alleged grounds for new trial being that the testimony of plaintiff as a witness was false and untrue to his knowledge, as shown by his subsequent testimony in another case, and the discovery of new evidence which, if produced on the trial, would have tended to contradict the testimony of plaintiff as then given. The court, on motion struck out an amendment to the petition for new trial, on the ground that it was filed more than one year after the rendition of judgment, and refused to grant plaintiff any relief under the petition for the reason stated, that the newly discovered evidence was cumulative. The defendant appeals.
Reversed.
Johnston Bros., for appellant.
J. C Walter, for appellee.
OPINION
On the trial of the action in 1907, judgment was rendered for the plaintiff for the selling price of a car load of stock hogs delivered to defendant in 1902. The defense interposed on the trial was breach of warranty that, first, the hogs were not afflicted with the disease known as hog cholera; and, second, that said hogs had not been unloaded from the time they were shipped from South Dakota until they were unloaded at Ida Grove; the result of the breach of warranty being that the hogs were of no value on account of their diseased condition when delivered.
From the averments of the petition for new trial and the evidence offered in support thereof, it appeared that soon after the rendition of judgment in this case, in another case brought by this plaintiff against other defendants to recover the purchase price of other hogs delivered at the same time, and a part of the same shipment, wherein the same defenses were interposed, plaintiff's testimony as to the transfer of the hogs from the cars of the Chicago, Milwaukee & St. Paul Railway Company to the cars of the Chicago & Northwestern Railway Company, at Sioux City, in the course of their transportation from South Dakota to Ida Grove, was materially different from that given by him on the trial of this case, and that the difference was such as tended to show his testimony on the trial of this case to have been false; and, further, that a witness, one Marshall, who was yardmaster of the Sioux City stockyards at the time the hogs were transferred at that city, gave testimony, based on his records, materially contradicting the testimony of plaintiff as witness on the trial of this case, which testimony of Marshall this defendant, although exercising due diligence, had been unable to discover before judgment was rendered against him.
I. The petition for new trial as originally filed sufficiently recited the falsity of the testimony of plaintiff; and it further recited that defendant had "discovered new evidence which he could not and did not discover prior to the trial by the exercise of due diligence and care; that since said trial, and only recently, he has discovered and found the yardmaster of the Sioux City stockyards, who held such position at the time the plaintiff unloaded the hogs sold to defendant in the yards at Sioux City, Iowa," and a new trial was asked on the ground of "the newly discovered evidence herein set forth and the false, fraudulent, and perjured testimony of the plaintiff." These averments constituted a very inadequate and insufficient statement of a claim for a new trial on account of the newly discovered evidence of the yardmaster, but we think it did constitute a claim, in effect, that if defendant was granted a new trial he could produce as a witness said Marshall, the yardmaster, who would give testimony contradictory to that introduced for the plaintiff on the trial of the case. Therefore we think that the amendment to this petition, filed more than a year after the rendition of the judgment, more specifically referring to the reasons consistent with due diligence why the knowledge of Marshall as to the transaction in question was not sooner ascertained, was proper; and that, as no question was made at any stage of the proceeding in regard to the insufficiency of the averments relating to the newly discovered evidence of Marshall, save that due diligence was not shown, and that such evidence was cumulative, we shall proceed to determine the case on the theory that there was a sufficient averment in this respect of newly discovered evidence. The rule is that an amendment to a motion or petition for new trial may be made after the time limited by statute for the filing of such motion or petition, if no new grounds are therein presented. Sowden v. Craig, 20 Iowa 477; Dutton v. Seevers, 89 Iowa 302, 56 N.W. 398; Means v. Yeager, 96 Iowa 694, 65 N.W. 993; Harnett v. Harnett, 59 Iowa 401, 13 N.W. 408.
II. An objection to the sufficiency of the allegations in the petition now made for the first time, so far as indicated by the record, is that there was no issue in the case to which this newly discovered evidence of Marshall, or the inconsistency between the later testimony of plaintiff and his testimony on the trial in this case, would be pertinent. But it was alleged in the answer that plaintiff warranted and represented that the hogs had not been unloaded from the time they were shipped from South Dakota until they were unloaded at Ida Grove, and that this warranty was false and relied upon by defendant. From the proceedings on the trial of the case preserved in the record now presented, it appears that defendant undertook to prove as material matter the unloading of the hogs into the stockyards at Sioux City, and that at the time of purchasing the hogs he told plaintiff he would not buy them if they had been in such stockyards, on account of the danger that they might have there contracted the disease of hog cholera, which they would not have had the opportunity to contract if they had not been unloaded at such stockyards, or similar public yards, in course of shipment. It is apparent, therefore, that, whether or not the averment of the answer was sufficient to show the materiality of the evidence offered in the petition for new trial, such evidence was material under the issues actually presented in the case as tried. We can not say now that evidence squarely contradicting the testimony of the plaintiff on the trial would not be material, if the case should be retried.
III. It will be necessary to separately consider the proposed evidence that plaintiff in a subsequent case gave testimony wholly inconsistent with his testimony in this case, the inconsistency being of such character that its proof would be to this defendant's advantage, and the proposed proof that Marshall, the yardmaster, would give testimony on a material matter, inconsistent with the testimony of plaintiff in this case which was adverse to the defendant. The inconsistency between the testimony of plaintiff on this trial and his testimony on the subsequent trial of a different case consisted in the fact that on the trial of this case, for the purpose of showing that the hogs had not been unloaded into or transferred through the stockyards at Sioux City, so as to be exposed to danger of contracting hog cholera, and in explanation of the fact that the hogs were carried from Sioux City in a different car from that in which they reached that point in the course of their transportation from South Dakota to Ida Grove, plaintiff testified that after certain fat hogs intended for the Sioux City market were unloaded from the car into the yards the car was by the railroad company taken to a point beyond the stockyards, where the hogs intended for the defendant were transferred to another car by means of a platform extending between the two cars, which were placed side by side; while on the subsequent trial plaintiff testified that after the fat hogs were removed from the car he knew nothing further about what was done with this car and another car of hogs which accompanied it, intended for other purchasers at Ida Grove, and that he was not present when the hogs from these two cars were transferred to the cars in which they arrived at Ida Grove. We are satisfied from the record of the absolute inconsistency of the testimony of plaintiff on these two trials, and that, if his subsequent testimony on the other trial was true, then plaintiff's testimony on the trial of this case was false, and to the prejudice of this defendant.
So far as plaintiff's subsequent testimony on the other trial might be relied upon for the purpose of showing fraud practiced in obtaining the judgment in this case, under Code section 4091, relating to new trials on petition filed within a year, we think it was not competent or material. We have held that in an action in equity, instituted after the expiration of the year within which a petition for new trial might have been filed, to set aside a judgment for fraud, it is not competent to prove that the judgment was procured by false swearing or perjury, such a fact being intrinsic and conclusively adjudicated in the judgment rendered ( Graves v. Graves, 132 Iowa 199, 109 N.W. 707), and, as the equitable relief from a judgment on account of fraud which may be granted after the expiration of the year allowed for petition for new trial is limited to the kind of relief which might have been granted under the statute on application made within a year, we see no reason why this rule is not also applicable to that ground of relief, when relied upon in a petition under the...
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