Hines v. Driver

• Decision Date: 12 February 1885
• Docket Number: 10,644
• Citation: 100 Ind. 315
• Parties: Hines et al. v. Driver
• Court: Indiana Supreme Court

100 Ind. 315

Hines et al. v. Driver

No. 10,644

Supreme Court of Indiana

February 12, 1885

From the Hamilton Circuit Court.

Judgment reversed, with instructions to sustain the demurrer to the complaint.

A. F Shirts, G. Shirts, W. R. Fertig and W. Neal, for appellants.

T. A Hendricks, A. W. Hendricks, C. Baker, O. B. Hord, A. Baker E. Daniels, D. Turpie, D. Moss, R. R. Stephenson, H. A. Lee, T. J. Kane and T. P. Davis, for appellee.

OPINION

Elliott, J.

The appellee's complaint seeks a new trial on the ground of newly discovered evidence. Its sufficiency was questioned by a demurrer in the court below, and the appellants insist that their demurrer ought to have been sustained.

The case has already received consideration upon a motion made by the appellee to dismiss the appeal, and it was then held, after a very careful and full investigation, that a proceeding seeking a new trial, commenced after the expiration of the term, was an independent one. Hines v. Driver, 89 Ind. 339. We have no doubt of the correctness of the conclusion then announced. As the proceeding is a new and independent action, it requires a complaint; it is, indeed, expressly required by the statute, and has been so held by our own and other courts. In Glidewell v. Daggy, 21 Ind. 95, it was said, in speaking of an application for a new trial made after the close of the term: "It is by complaint, and the complaint must show, on its face, a case for a new trial, so that, should it be demurred to, and thereby be admitted, the court would act finally upon it. It must contain, in allegation, what must be shown in proof." The court, in Sanders v. Loy, 45 Ind. 229, declared that the proceeding was an independent one, and held that an issue must be formed on the complaint, and tried by the court, and the judgment was reversed because the court erred in overruling the demurrer. In Hiatt v. Ballinger, 59 Ind. 303, it was held that the proceeding was an independent one, and that the demurrer to the complaint was properly sustained. But it is unnecessary to make further extracts from the adjudged cases in this court, for they uniformly hold that the proceeding is an independent one, that it is by complaint, and that the sufficiency of the complaint may be tried by demurrer. Allen v. Gillum, 16 Ind. 234; Huntington v. Drake, 24 Ind. 347; Rickart v. Davis, 42 Ind. 164; Bartholomew v. Loy, 44 Ind. 393; Shigley v. Snyder, 45 Ind. 543; Roush v. Layton, 51 Ind. 106; Cox v. Harvey, 53 Ind. 174; Trustees, etc., v. Reynolds, 61 Ind. 104; Burton v. Harris, 76 Ind. 429; Kitch v. Oatis, 79 Ind. 96. It is so held elsewhere. Cohol v. Allen, 37 Iowa 449. As a complaint is required, it must be such as will withstand a demurrer, and in order that it may be sufficient to do this, it must properly plead such facts as show the applicant entitled to a new trial. It is a familiar rule of pleading, that a demurrer admits only such facts as are sufficiently pleaded, and the question which in this instance arises under the rule is, whether the affidavits of witnesses and the bill of exceptions containing the evidence given on the former trial and filed with the complaint form part of it in such a manner as to be deemed sufficiently pleaded. The general rule undoubtedly is that a paper not the foundation of an action can not be made part of a pleading by filing it as an exhibit. This rule is a statutory one, and is firmly supported by the decided cases. Cassaday v. American Ins. Co., 72 Ind. 95, see auth. p. 99; Clodfelter v. Hulett, 72 Ind. 137; Stahl v. Hammontree, 72 Ind. 103; Briscoe v. Johnson, 73 Ind. 573; Carter v. Branson, 79 Ind. 14. Where, however, the instrument is properly made an exhibit, and thus incorporated into the complaint, it will not only aid the averments of the pleading, but will often control them. Bayless v. Glenn, 72 Ind. 5; Parker v. Teas, 79 Ind. 235, see auth. p. 238. But, while the general rule is that stated, there are many exceptions to it. A complaint for review not only may but must set out a transcript of the proceedings, and this is properly done by way of making it an exhibit. So, when a construction of a will is asked, the will may be set out as an exhibit. So, where the correction of a written instrument is asked, it is properly made an exhibit. We think the present case also forms at least a partial exception to the general rule. It is settled by the decisions to which we have referred, that the complaint for a new trial must set forth the evidence given on the former trial, and also the affidavits of the witnesses from whom the newly discovered evidence is expected to be elicited in case of a new trial. The case is therefore very plainly distinguishable from one in which the evidence is not required to be set out. The difference between the cases governed by the general rule becomes more striking, when it is brought to mind that ordinarily it is improper to plead evidence; while, in such a case as this, it is not only proper, but indispensably necessary. As the evidence must be pleaded, it is only necessary to plead the instruments which contain it. Any other rule than this would uselessly encumber the record, for it would require the instruments to be made exhibits and the evidence itself to be rehearsed in the body of the complaint, and, surely, no good purpose would be accomplished by such a practice. In many of the cases cited, the evidence, new and old, was made part of the complaint by exhibits, and the practice was impliedly, if not expressly, recognized as the correct one. In the case of Trustees, etc., v. Reynolds, supra, the rule we have stated was declared in a very emphatic way, for it was held that the statements of the exhibit would control the averments in the body of the complaint. This can only be correct to the extent that such exhibits form parts of the complaint, and the decision does not profess to carry it further.

It is an elementary principle, that where an instrument is properly referred to, it becomes part of the pleading making the reference, and thus enters into the record. Broom Legal Maxims, 522. This principle is a familiar one in the chancery practice, and is recognized in numerous cases in our own reports. The question is, whether the instruments are such as may properly be made exhibits; if they are, then, when made exhibits, they form part of the pleading, and are, of course, in the record; if they are not proper exhibits, they are no part of the pleading, so that the controversy turns upon the question whether the instruments are proper exhibits or not.

While we hold that the affidavits and the bill of exceptions containing the evidence given on the former trial may be made exhibits, we hold, also, that they are only part of the pleading, for the single purpose of showing the former evidence and the newly discovered evidence. The exhibits can be allowed no greater force than this. They can not be resorted to for the purpose of aiding the complaint in any other particular; their effect must be confined to a statement of the original and the newly discovered evidence; all the other facts essential to the validity of the complaint must be stated in the body of that pleading as in ordinary cases.

The complaint in Hill v. Roach, 72 Ind. 57, was for a review, and was not a complaint for a new trial, and it was rightly held that the complaint must be tried by the averments in the body of it, and not by the recitals in the affidavit of a witness. A complaint for a new trial is for newly discovered evidence; while a complaint for a review is for newly discovered matter, and the newly discovered matter must be stated in the body of the complaint. The difference between the two cases has been many times explained; among the cases explaining it are Hall v. Palmer, 18 Ind. 5, Fleming v. Stout, 19 Ind. 328, Webster v. Maiden, 41 Ind. 124, see p. 130, and Barnes v. Dewey, 58 Ind. 418. As said in Nelson v. Johnson, 18 Ind. 329, "New matter is a different thing from new evidence. Matter, as the word is used in law, means a fact or facts constituting the whole or a part of a ground of action or defence."

The exhibits incorporated into the complaint by way of reference are to be regarded as sufficiently pleading the new testimony and the evidence given on the former trial, and they, therefore, state two essential elements of the plaintiff's case, the newly discovered evidence and the evidence on the former trial, but they do no more.

It remains to ascertain whether the other elements of a cause of action are found in the body of the complaint, for, if not found there, they do not exist. The facts out of which the litigation arose are stated in the opinion deciding the case when it was here for the first time. Hines v. Driver, 72 Ind. 125. The contest was over the question whether Driver had falsely represented the amount of the indebtedness of the firm of which he was a member, to induce Hines to buy that interest, it being contended by the latter that Driver had represented the indebtedness of the firm to be $ 1,500, whereas it amounted to $ 4,800. The first trial resulted in a verdict and judgment in favor of Driver, but this judgment was reversed (Hines v. Driver, supra); after the case got back into the trial court it was again tried, and a verdict and judgment rendered in favor of the appellants. The appellee secured a new trial upon the same ground as that upon which he now seeks one, namely, newly discovered evidence, and a third trial was had, and he was again defeated.

The appellee, having once secured a new trial upon the ground of newly discovered evidence, must show a very strong case, or he can not again have a new trial upon the same ground. Society has an interest in matters such as this, for it is not...