Heim v. Resell

• Citation: 133 N.W. 881,153 Iowa 356
• Parties: HEIM ET AL. v. RESELL ET AL.
• Decision Date: 18 December 1911
• Court: United States State Supreme Court of Iowa

153 Iowa 356

133 N.W. 881

HEIM ET AL.

v.RESELL ET AL.

Supreme Court of Iowa.

Dec. 18, 1911.

Appeal from District Court, Allamakee County; L. E. Fellows, Judge.

This is a proceeding on a petition for new trial of an action between the same parties, in which there was a verdict and judgment for the defendants. The petition was supported by affidavits, and on a hearing the lower court dismissed the petition. Plaintiffs appeal. Appeal dismissed.H. H. Stilwell and Douglas Deremore, for appellants.

W. S. Hart, for appellees.

McCLAIN, J.

In the former action, retrial of which is asked in this petition, the allegations of plaintiffs were that defendants were indebted to them in the sum of $108.95 for money loaned by plaintiffs to defendants, with interest thereon; and in the separate answers of defendants the allegations of the petition were denied, and it was alleged that defendants never had with plaintiffs, or with any one acting for them, any transactions out of which the indebtedness sued for arose, or ever received or retained any money belonging to plaintiffs, not fully accounted for. The issues in that trial were submitted to a jury under the evidence presented, and there was a verdict and judgment for the defendants. In the course of the trial, there was a contention for defendants that a sum of money had been paid to plaintiffs by defendants, and to sustain the testimony for defendants in this respect they attempted to account for the possession of money from which such payment could have been made, by testifying to the receipt of various sums of money from different sources. In support of the present petition for new trial, plaintiffs proposed to show that the testimony of the defendants on the former trial, as to the sources from which these various sums of money were received, was untrue, and in support of the petition affidavits were presented to the lower court of the persons from whom defendants claimed to have received the money that such sums of money were not in fact paid to defendants. The trial court dismissed the petition for new trial, but whether on the ground that no competent evidence in its support was offered, or on the ground that there was no sufficient showing of reasonable diligence to procure such evidence on the former trial, does not appear.

[1][2] 1. Newly discovered material evidence, which could not with reasonable diligence have been discovered and produced at the trial, may be the basis for a new trial under Code, § 3755. In general, motions for new trial must, under the provision of Code, § 3756, be made within three days after verdict, “except for the cause of newly discovered evidence.” But, if the application for new trial is made on the ground of newly discovered evidence after the expiration of three days, it should be by petition, as provided in Code, § 4092. First National Bank v. Murdough, 40 Iowa, 26. The provisions as to petition for new trial within one year are found in Code, § 4091, in which various grounds are specified, none of them in terms referring to newly discovered evidence; and in Code, § 4092, it is provided that application for such new trial shall be made by petition, as in an original action, and that “the facts stated in the petition shall be considered as denied without answer and tried by the court as other actions by ordinary proceedings.” The contention for appellees is that a motion for new trial on the ground of newly discovered evidence, made after three days, but within a year, is to be determined on evidence offered, as in other cases of petition for new trial under Code, § 4091, and that, as in this case the motion or petition, whichever it may be called, was supported only by affidavits, and not by evidence offered, there was no basis on which the lower court could have granted plaintiffs any relief; while the contention for appellants is that a motion for new trial on the ground of newly discovered evidence, although made after three days, if presented within a year, may be supported by affidavit to the same effect as though it were made within three days after the verdict, provided, of course, that reasonable diligence is shown in not discovering the evidence in time to have presented it on the original trial. This exact point seems not to have been expressly ruled upon in any of our cases. In Hunter v. Porter, 124 Iowa, 351, 100 N. W. 53, there was a petition for new trial on the ground of newly discovered evidence, and the court heard testimony in accordance with the provisions of Code, § 4092; and it is said in the opinion, in answer to the objection that the application should have been by motion, and without expressing any opinion as to whether the proper procedure was by motion or petition, that there was no error in proceeding on the petition to hear evidence in its support. In Scott v. Hawk, 105 Iowa, 467, 75 N. W. 368, there was a demurrer to the petition for new trial, based on the ground of newly discovered evidence, and it is assumed that reasonable diligence must be alleged and proved in such a case. Although the court refers to affidavits in support of a motion for new trial on the ground of newly discovered evidence, there is a quotation in the opinion from Woodman v. Dutton, 49 Iowa, 398, in which...