Lewis v. McMullin

• Decision Date: 31 January 1872
• Citation: 5 W.Va. 582
• Parties: John D. Lewis, et al, v. John L. McMullin, et aL
• Court: West Virginia Supreme Court

5 W.Va. 582

John D. Lewis, et al,

v.John L. McMullin, et aL

Supreme Court of Appeals of West Virginia.

January Term, 1872.

1. A case in which the action being ejectment, it was not error to refuse a new trial on the ground of newly discovered testimony, such alleged testimony being that one of the plaintiffs had conveyed by deed an undivided moiety of the land in controversy; the deed having been recorded in the county in which the suit was instituted two years before the trial. And it not being alleged in the affidavit that the co-defendants, or any of them, had no notice or knowledge of such deed, or that any of them had used due diligence, or any diligence, to ascertain the fact of its existence. Nor could the defendants have been prej udiced by the refusal to grant a new trial, inasmuch as the remaining plaintiff being a tenant in common with the grantee in the deed, would have been entitled to recover, as against the defendants, the whole of the land in controversy.

It is not good grounds for the setting aside of a verdict on the affidavit of a juror, that the jury would have found a different verdict if they had believed that at the time certain declarations were made to witnesses, by an old man, as to the location of a corner, that the old man was of sane mind and reasonable judgment.

Ejectment brought to September rules, I860, in the circuit court of Kanawha county. Trial and verdict for plaintiffs, Hale and McMullin, December term, 1868.

The only question determined in this court arose on the refusal of the court below to grant a new trial. The grounds for the motion are fully stated in the President's opinion, except the matters stated in the affidavit of one of the jurors, alluded to therein. The latter contained a statement, that if the jury had believed that the declarations of a certain party, an old man over eighty years of age, as to the location of a, corner, were made to the witnesses whilst the old man was sane and of reasonable judgment, the verdict would have been for the defendants. The defendants appealed.

Miller & Quarrier for the plaintiffs in error.

T. B. Sivann and B. H. Smith for the defendants in error.

Berkshire P. The question to be considered in this case arises on the appellants' motion for a new trial. They based their motion on the alleged discovery, since the trial, of new evidence, of which they claim they had no notice or knowledge at the time; and also on the affidavit of one of the jurors in relation to a...