Langley v. Devlin

• Decision Date: 19 October 1915
• Docket Number: 12011.
• Citation: 87 Wash. 592,151 P. 1134
• Court: Washington Supreme Court
• Parties: LANGLEY et al. v. DEVLIN et al.

151 P. 1134

87 Wash. 592

LANGLEY et al. v. DEVLIN et al.

No. 12011.

Supreme Court of Washington

October 19, 1915

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Bill by W. J. Langley and others against A. J. Devlin and others. From an order granting a new trial, after decree for plaintiffs, plaintiffs appeal. Affirmed.

Cannon, Ferris & Swan, of Spokane, for appellants.

Robertson & Miller, of Spokane, John P. Gray, of Coeur de'Alene Idaho, and Post, Avery & Higgins, of Spokane, for respondents.

MOUNT J.

This appeal is from an order of the lower court granting a new trial in a cause which was tried to the court without a jury. At the conclusion of the trial the court made findings of fact and entered a decree in favor of the plaintiffs. Thereafter the defendants filed a motion for a new trial upon all of the statutory grounds. This motion was supported by a number of affidavits tending to show the fact of newly discovered evidence material to the cause, misconduct of parties interested in favor of the plaintiffs, and other reasons. The trial court, after a hearing upon the motion, and after considering the affidavits, entered a general order granting the motion for a new trial. The plaintiffs have appealed from that order.

Voluminous briefs have been filed, and an argument is made to the effect that the trial court granted the motion for a new trial upon the ground of newly discovered evidence alone; and it is contended that the affidavits were insufficient to show that the evidence was newly discovered, or that diligence had been exercised in procuring the newly discovered evidence. These contentions are based largely upon what the trial court said in passing upon the motion. When the trial court was passing upon the motion, he made a statement as follows:

'It may be admitted that the affidavit of Mr. McCarthy in itself is not entirely satisfactory, since it details almost entirely hearsay, something very difficult to combat; that the letters attached to his affidavit are not denied, and these, together with certain portions of the affidavit explaining or supplementing them, present facts which cannot be overlooked in the endeavor to reach a just conclusion of this lawsuit. These letters and other statements uncontradicted show: (1) That the Langleys knew that Page and Devlin owned stock in the Coal Company long before this action was begun and probably from the very beginning. If this had been shown at the trial, it would have defeated the plaintiffs' case. (2) That Langley knew that Galbraith claimed an interest (as well as Harvey), whereas their complaint showed that they had nothing, and (if my memory serves me correctly) counsel said upon the trial that he did not learn until just before the trial that Galbraith had an equal interest with the Langleys. If that had been known, it would have meant, at least, a recasting of the complaint, if not a dismissal. (3) That witness Hayes was gotten away by O'Neill temporarily, and that at least an

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