Knuckles v. Helton
| Decision Date | 01 February 1952 |
| Citation | 245 S.W.2d 942 |
| Parties | KNUCKLES et al. v. HELTON et al. |
| Court | United States State Supreme Court — District of Kentucky |
Cleon K. Calvert, Pineville, Robert J. Watson, Middlesboro, for appellants.
James Sampson, Harlan, for appellees.
On June 14, 1949 we affirmed the judgment in the case of Knuckles v. Woolum, 311 Ky. 262, 223 S.W.2d 886. The dispute in that case related to the location of a boundary line agreed upon in 1888 by W. R. Knuckles and H. W. Neal, predecessors in title of the parties to this appeal. Included in an instrument executed by Knuckles and Neal were a description of the boundary and a notation that the line had been marked. Reference is made to the Knuckles v. Woolum opinion for further development of the facts and of the contentions of the parties.
In July 1950 the appellants filed a petition for a new trial on the ground of newly discovered evidence under Section 344 of the Civil Code of Practice. The Chancellor sustained a general demurrer to the petition as amended, and, when the appellants refused to plead further, entered a judgment dismissing the petition. This appeal is from that judgment.
The appellants filed with their petition the affidavit of 88 year-old John Saylor who stated that he was present at the request of Knuckles and Neal when the boundary line was marked, and that he helped mark the line. He stated that the line ran on the ridge between Bear Wallow Branch and Ben Carroll Branch (as was contended by the appellants in the original action). He understood that the agreement between Knuckles and Neal was that 'Neal was to get all the land on Bear Wallow Branch, and Knuckles all that Neal owned or claimed outside that branch.' He further stated that the judgment in the Knuckles v. Woolum action gave to the heirs of Neal that which was to belong to Knuckles.
We have long adhered to the rule that a new trial will not be granted on the ground of newly discovered evidence where the newly found evidence is merely cumulative of that presented on the trial, Jones' Adm'x v. May, 310 Ky. 706, 221 S.W.2d 617; Williams v. H. C. Whitmer Co., 252 Ky. 242, 67 S.W.2d 8, unless such evidence is sufficient to render clear that which was doubtful before, or unless it is of such a conclusive or controlling character that it would have a decisive effect upon the judgment sought to be overturned or would render a different result reasonably certain. Cincinnati, N. O. & T. P. Ry. Co. v. Snow, 284 Ky. 58, 143 S.W.2d 863; Collinsworth v. Harvey Coal Corp., 288 Ky. 704, 157 S.W.2d 294; Lindsey v. Kentucky Development Co., 291 Ky. 253, 163 S.W.2d 499; Pearce v. Coogle, 297 Ky. 194, 178 S.W.2d 938.
That the newly discovered evidence in the instant case is cumulative is clearly evident from the testimony given on the former trial by the witnesses for ...
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Sharp v. Sharp
...for approximately eight months and there had been sufficient opportunity to disclose the value of all property held. In Knuckles v. Helton, Ky., 245 S.W.2d 942 (1952), we 'It is well settled that the granting or refusing of a new trial for newly discovered evidence rests largely within the ......
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Durbin v. Nally, Ballard, and Saltsman, Inc.
...testify are not of such conclusive or controlling character as to make reasonably certain a different judgment. See Knuckles v. Helton, Ky.1952, 245 S.W.2d 942. The judgment is ...