Hall v. Jensen

• Decision Date: 28 January 1908
• Citation: 14 Idaho 165,93 P. 962
• Parties: M. F. HALL, Appellant, v. J. M. JENSEN et al., Respondents
• Court: Idaho Supreme Court

93 P. 962

14 Idaho 165

M. F. HALL, Appellant, v. J. M. JENSEN et al., Respondents

Supreme Court of Idaho

January 28, 1908

Syllabus by the Court.

A motion to strike from the transcript the affidavit on motion for new trial, on the ground that it is not identified or certified by the trial judge as having been considered on the hearing of the motion for a new trial, will not be granted where such affidavit is stipulated by counsel for the respective parties as having been used on the hearing of the motion for a new trial.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2714, 2715.]

On the question of the certification of papers or documents used on the hearing of a motion, the case of Crowley v. Croesus Mining Co., 12 Idaho 530, 86 P. 536, is expressly overruled, in so far as it applies to civil cases.

Under the provisions of section 4821, Rev. St. 1887, the copies of the papers provided for by sections 4818-4820, Rev. St. 1887 to be used on appeal, may be certified or identified by the clerk, or by stipulation of attorneys, or may be certified and identified by the judge.

Under the provisions of section 4427, Rev. St. 1887, the papers used on the hearing of a motion, which are made a part of the records and files in the action, need not be embodied in a bill of exceptions, and, if the same appear in the records or files, they may be reviewed upon appeal as though settled in a bill of exceptions, if certified or identified as provided by law.

The granting of a motion to reopen the trial of a case, and to permit the introduction of rebuttal testimony, is in the legal discretion of the court, and its action thereon will not be reversed, unless it appears that such discretion has been abused.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3849-3857.]

Under the provisions of paragraph 3, of section 4439, where application is made upon affidavit for a new trial on the ground of accident or surprise, which ordinary prudence could not have guarded against, the facts constituting such accident or surprise must be set forth in the affidavit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 303-305.]

Where the application for a new trial is made under the provisions of the fourth paragraph of said section 4439, the newly discovered evidence must be set forth, and it must also appear from the affidavit that the party could not, with reasonable diligence, have discovered the same, and produced it at the trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 307-311.]

Newly discovered evidence, which is merely cumulative, or designed to contradict witnesses, is not sufficient to warrant the granting of a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 218-220.]

The granting or denying of a new trial is in the sound discretion of the court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 9, 10.]

APPEAL from the District Court of Seventh Judicial District for Canyon County. Hon. Frank J. Smith, Judge.

Motion for a new trial denied by Hon. Ed. L. Bryan, successor to Judge Smith. Action to set aside a judgment. Judgment for the defendant. Affirmed.

Judgment affirmed with costs in favor of the respondent.

Rice & Thompson, for Appellant.

On the evidence as now presented to this court by the record, the judgment against appellant in the district court should not have been rendered, and he ought to be granted a new trial. The only question is the technical one, as to whether sufficient showing has been made in the affidavit of Mr. Hall, used on the motion for the new trial, of due diligence in not producing the note at the trial. The court is entitled to take into consideration the state of the pleadings and the condition of facts, as shown by the record and undisputed. (Kenezleber v. Wahl, 92 Cal. 202, 28 P. 225; Delmas v. Martin, 39 Cal. 555; Jones v. Singleton, 45 Cal. 92.)

Stone & MacLane, for Respondents.

A motion to reopen a case after the evidence has been closed is addressed to the sound discretion of the trial court. (Kimball v. Saguin, 86 Iowa 186, 53 N.W. 116; Des Moines Sav. Bank v. Colfax Hotel Co., 88 Iowa 4, 55 N.W. 67; Riha v. Pelnar, 86 Wis. 408, 57 N.W. 51; Cushman v. Coleman, 92 Ga. 772, 19 S.E. 46; see, further, 46 Cent. Dig., col. 892.)

This discretion of the trial court is so exclusive that it will not be reviewed at all, or, at least, not unless a clear abuse of discretion is shown. (Gordon v. Reynolds, 114 Ill. 118, 28 N.E. 455; Haines v. Young, 132 Cal. 512, 64 P. 1079.)

The affidavit on motion for new trial is in no manner certified or identified by the trial judge as having been used on the motion for new trial. Therefore it cannot be considered. (Crowley v. Croesus etc. Co., 12 Idaho 530, 86 P. 536.)

The party alleging surprise should be required to show it conclusively, and by the most satisfactory evidence within his reach. (Schellhous v. Ball, 29 Cal. 605.) Also, with respect to the question of newly discovered evidence. (Baker v. Joseph, 16 Cal. 173; Mowry v. Raabe, 89 Cal. 606, 27 P. 157.)

It was appellant's duty, if surprised at the testimony of the respondents, to have at once disclosed the fact to the court, and to have submitted to a nonsuit, moved for a continuance, or to have otherwise sought immediate relief. Having failed to try any of these expedients, he is in no position to ask for a new trial either on the ground of surprise or of newly discovered evidence. (Doyle v. Sturla, 38 Cal. 456; Schellhous v. Ball, 29 Cal. 605; Heath v. Scott, 65 Cal. 548, 4 P. 557; Klockenbaum v. Pierson, 22 Cal. 160.) A party must come to trial prepared to rebut any false testimony which his adversary may produce, and he cannot claim, on motion for a new trial, that he was surprised at certain testimony because the same was false. (14 Ency. of Pl. & Pr. 733 et seq.; Taylor v. California Stage Co., 6 Cal. 228; Klockenbaum v. Pierson, 22 Cal. 160.)

"Evidence of a fact known at the trial about which one of the witnesses testified is no ground for a new trial." (People v. Lyle (Cal.), 4 P. 977.) The alleged newly discovered evidence must not be merely cumulative, or tending to impeach or contradict a witness. (Live Yankee Co. v. Oregon Co., 7 Cal. 40; Wood v. Moulton, 146 Cal. 317, 80 P. 92; Stoakes v. Monroe, 36 Cal. 383.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought in the district court to set aside a judgment entered by a justice of the peace, on the ground that the alias summons issued by the justice was not served on the defendant in that action, which was an action by J. M. Jensen and another, under the firm name of the Bank of Brigham City, as plaintiffs, v. M. F. Hall, defendant, to recover a money judgment. The cause was tried by the court without a jury and judgment was entered in favor of the respondents, who are the defendants in this action. A motion for a new trial was overruled and the appeal is from the judgment and order denying a new trial.

A motion has been made to strike from the transcript the affidavit of M. F. Hall on motion for a new trial, on the ground that said affidavit is not identified or certified by the trial judge as having been used or considered on the hearing of the motion for a new trial. To the transcript is attached the following stipulation, signed by the respective attorneys:

"It is hereby stipulated and agreed by and between the attorneys for the respective parties that the foregoing transcript contains full, true and correct copies of the judgment-roll, notice of motion for a new trial, statement and affidavit used on motion for a new trial, order denying motion for a new trial, and notice of appeal herein, and that an undertaking in due form has been filed herein."

It will be observed that counsel stipulated that the affidavit referred to was used on motion for a new trial, but counsel for respondent cite the decision of this court in Crowley v. Croesus Mining Co., 12 Idaho 530, 86 P. 536, wherein it was held that the certificate of the clerk of the district court, to the effect that certain affidavits were used on the hearing of a motion for a new trial, was not sufficient to authorize this court to consider the affidavits, and that such certificate must be made by the trial judge, or that such affidavits must be contained in an authenticated record, certified by the judge, showing that such affidavits were used on the hearing. That decision is clearly wrong and contrary to the statute and former decisions of this court. On examination of that case, we find that the decision was based on the decision of this court in State v. Larkins, 5 Idaho 200. 47 P. 945. That was a criminal case, and the decision was rendered under the provisions of secs. 7940 to 7946, inclusive, of the Penal Code, which provisions apply to appeals in criminal cases only. The decision in the Crowley case upon the point under consideration is hereby expressly overruled, as applied to civil cases.

And it is contended that the stipulation of attorneys in that regard can have no greater effect than the certificate of the clerk and for that reason said affidavit should be stricken from the transcript. It is also contended that no one but the judge can identify or certify the papers considered by him on the hearing of such motion. This question was under consideration by this court in the case of Simmons Hdw. Co. v. Alturas Com. Co., 4 Idaho 386, 39 P. 553. The opinion in that case was prepared by Chief Justice Morgan, and is quite exhaustive on the question here under consideration, and after reviewing a number of California authorities upon this...