Hunter v. Porter

• Decision Date: 10 June 1904
• Citation: 100 N.W. 53,124 Iowa 351
• Parties: JOHN C. HUNTER, Appellee, v. LUCY R. PORTER, HENRY E. PORTER, J. N. RICHEY, N. B. RICHEY, Appellants
• Court: Iowa Supreme Court

100 N.W. 53

124 Iowa 351

JOHN C. HUNTER, Appellee, v. LUCY R. PORTER, HENRY E. PORTER, J. N. RICHEY, N. B. RICHEY, Appellants

Supreme Court of Iowa, Des Moines

June 10, 1904

Appeal from Johnson District Court.--HON. M. J. WADE, Judge.

APPEAL from an order granting a new trial upon application of the plaintiff as against the defendants Richey.

Affirmed.

Henry E. Porter and Baker & Ball, for appellants.

Remley & Ney, for appellee.

OPINION

WEAVER, J.

The questions raised by the appeal do not require any discussion of the issues in the principal case. Upon the return of the verdict, plaintiff filed a motion for a new trial, assigning various alleged errors appearing in the record. Later (the date is not stated) the motion was amended by alleging newly discovered evidence. Some months after the trial, but within the year, plaintiff withdrew the amendment to his motion, and filed a separate petition or application for a new trial alleging as ground for such order the discovery of new and material evidence. After hearing testimony in behalf of both parties, the application was granted, and a new trial ordered. It is from this order appeal has been taken.

I. It is first argued by the appellants that, as no judgment had been entered upon the verdict, the trial court was without authority or jurisdiction to entertain the application for new trial. The provisions of the Code relating to new trials so far as pertinent to this case, are as follows: Section 3755 recites nine different grounds upon which the court may order a re-examination or retrial of an issue of fact, and among the ground so enumerated is "newly discovered evidence material for the party applying which he could not with reasonable diligence have discovered and produced at the trial." By section 3756 it is provided that, unless the preceding section must be filed within three days after the verdict, but the same section excepts from the operation of this rule motions based on claims of newly discovered evidence. Section 4091 provides that, where a final judgment or order has been rendered or made, the district court, in addition to the causes for a new trial before authorized, may, after the term at which the same was rendered or made, vacate or modify the same, or grant a new trial, upon either of six different grounds there stated which list does not include newly discovered evidence. Section 4092 reads as follows: "New Trial after Term. 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, on which notice shall be served upon the successful party and returned, and he be held to appear as in an original action. The facts stated in the petition shall be considered as denied without answer, and tried by the court as other actions by ordinary proceedings, but no such petition shall be filed after one year from the rendition of final judgment." It will be observed that while sections 3755 ...