Hellman v. David Adler & Sons Clothing Company
| Decision Date | 03 October 1900 |
| Docket Number | 11,166 |
| Citation | 83 N.W. 846,60 Neb. 580 |
| Parties | MARIA HELLMAN v. DAVID ADLER & SONS CLOTHING COMPANY |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before DICKINSON, J. Affirmed.
AFFIRMED.
Connell & Ives, for plaintiff in error.
Montgomery & Hall, contra.
This proceeding in error has for its object the reversal of a judgment denying Maria Hellman's application for a new trial based upon an alleged discovery of material evidence after the adjournment of the term at which the case of David Adler & Sons Clothing Co. v. Maria Hellman was decided. The final decree in the case mentioned was rendered in February, 1895. It was adverse to the defendant, and she appealed to this court, where the decision of the district court was affirmed June 9, 1898. It appears from the record that the petition for a new trial was dismissed because it was not filed within the time limited by section 318 of the Code of Civil Procedure. It was filed October 27, 1898; more than three years after the final judgment was rendered in the district court, but within one year after the judgment of affirmance was pronounced. Counsel for the plaintiff in error contend that their application was seasonably made, because the final judgment contemplated by the limitation law is the ultimate decision rendered in the case, whether such decision be given by the trial court or by this court. We think counsel are wrong.
The policy of the legislature with respect to the re-examination of the issues of fact once tried and determined is clearly indicated in article 6 of the Civil Code. A party claiming a new trial must show diligence; he must move promptly. Any needless delay, any inertness, on his part, which hinders the court in bringing the litigation to a speedy conclusion results in a forfeiture of the statutory right. Section 316 is as follows: "The application for a new trial must be made at the term the verdict, report or decision is rendered and, except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented." Section 318 provides: "Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered or made the application may be made by petition filed as in other cases; * * * but no such petition shall be filed more than one year after the final judgment was rendered." It is quite clear from the sections quoted that, if the new evidence is discovered during the term at which the cause was decided, although after the decision was rendered, the application for a new trial must be made at...
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