Keisling v. Readle

• Decision Date: 29 April 1891
• Docket Number: 115
• Citation: 27 N.E. 583,1 Ind.App. 240
• Parties: KEISLING v. READLE
• Court: Indiana Appellate Court

27 N.E. 583

1 Ind.App. 240

KEISLING v. READLE

No. 115

Court of Appeals of Indiana

April 29, 1891

From the Rush Circuit Court.

Judgment affirmed, with costs.

D. S Morgan and D. Morris, for appellant.

W. A Cullen, for appellee.

OPINION

NEW J.

The complaint of the appellant is for a new trial on account of evidence alleged to have been discovered after the close of the term.

The original action was by the appellee against the appellant for materials claimed by the appellee to have been furnished by him and used in the construction of the appellant's dwelling. The appellee had judgment for fifty dollars and costs.

The sustaining of a demurrer to the complaint is assigned as error by the appellant. This is the only question presented by the record.

In the original suit there was evidence tending to prove that the material in dispute, to wit, doors and window glass, was purchased from the appellee, not by the contractor, but by the appellant, and by him hauled from the appellee's place of business to the dwelling which was then being built for the appellant.

It is alleged in the complaint that in said original suit it became material whether the appellant had promised the appellee that he would pay him for certain doors and window glass used by the contractor, Robert Perry, in the erection of said dwelling for the appellant; that he has discovered since the close of the term at which said trial was had, that "one Charles Miller, a competent witness, whose testimony can be obtained in a reasonable time, knows and will testify that he, the said Charles, was at the farm of plaintiff when the doors and window glass were brought out from the city of Rushville by the contractor, Robert Perry, and that this plaintiff did not haul any of the material for said dwelling."

It is further averred in the complaint that since the close of the term at which said trial was had he has discovered that "one John Mock, a competent witness, knows and will testify, and whose testimony can be procured in a reasonable time, that the doors and window glass were not hauled out to the said dwelling-house by the plaintiff, but by some one who was employed in the building of the house, but whose name he did not know, he being a stranger to the workmen employed in the construction of the house."

The affidavits of Miller and Mock accompany the complaint, and are as exhibits incorporated into it, by proper reference thereto.

The evidence given in the original suit is also set out in the complaint.

It is further averred in the complaint that Miller and Mock had quit appellant's employment and neighborhood long before the trial of said cause; that the appellant "did not know that they knew of the facts set forth in their affidavits, and could not ascertain that they knew such facts before the trial of said cause, nor during the term of court at which said cause was tried, although he made inquiry after he had been served with process, and before the former trial of said cause, in his neighborhood, of all such persons as he had any reason to believe had personal knowledge of any facts which would aid his defence to said action, or who knew of any person or persons who did possess knowledge of such facts, and did not ascertain such facts until long after the expiration of the term of court at which the trial was had, and for this reason could not have said parties at the trial to testify in his behalf."

Is it shown by the complaint that the appellant used due diligence to procure the testimony of Miller and Mock, and that it could not be discovered before or during the term of the court when the trial was had? If not, then the complaint would be fatally defective. Suman v. Cornelius, 78 Ind. 506; Du Souchet v. Dutcher, 113 Ind. 249, 15 N.E. 459; Cook v. Hare, 49 Ind. 268.

The facts constituting the diligence must be specifically set out in the complaint. When this is done it becomes a question for the court whether the alleged newly discovered evidence might, with reasonable diligence, have been ascertained before or during...