Lowry v. Indianapolis Traction & Terminal Co.

• Citation: 124 N.E. 409
• Decision Date: 08 October 1919
• Docket Number: No. 9882.,9882.
• Parties: LOWRY v. INDIANAPOLIS TRACTION & TERMINAL CO.
• Court: Court of Appeals of Indiana

124 N.E. 409

LOWRY

v.INDIANAPOLIS TRACTION & TERMINAL CO.

No. 9882.

Appellate Court of Indiana, Division No. 2.

Oct. 8, 1919.

Appeal from Circuit Court, Morgan County; Nathan A. Whitaker, Judge.

Complaint by the Indianapolis Traction & Terminal Company against Margaret J. Lowry, seeking new trial in an action in which the latter had recovered judgment against the former. From a judgment granting a new trial, Margaret J. Lowry appeals. Affirmed.

Wymond J. Beckett, of Indianapolis, A. M. Bain, of Martinsville, and William F. Elliott, of Indianapolis, for appellant.

D. E. Watson and S. C. Kivett, both of Martinsville, and W. H. Latta, of Indianapolis, for appellee.

McMAHAN, J.

The appellee filed its complaint in the Morgan circuit court after term for a new trial because of newly discovered evidence in an action commenced against it by the appellant in the Marion superior court, and in which the venue had been changed to the circuit court of Morgan county, where, on the trial, there was a verdict and judgment for appellant.

Appellee's complaint for a new trial was filed in the circuit court of Morgan county and set out the proceedings in the original action, including the pleadings, motion for a new trial filed in term, all the evidence given on the original trial, the efforts appellee made both before and after the trial to ascertain and discover the facts relative to appellant's injuries which she claimed to have received, the discovery after term of a certain witness, and the facts to which this witness would testify, all of which are set out in detail and verified.

[1] Appellant filed a plea in abatement alleging that she was a resident of Marion county, and that the Morgan circuit court had no jurisdiction over her. The court sustained appellee's demurrer to this plea. There was no error in this ruling. A motion or a complaint for a new trial must always be addressed to the court in which the verdict or judgment that it seeks to set aside was rendered. Smith v. Hall, 71 Conn. 427, 42 Atl. 86;Williams et al. v. Miles, 73 Neb. 193, 102 N. W. 482, 105 N. W. 181, 106 N. W. 769;Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223.

The whole history of every cause must be found in the records of the court in which it was brought or into which it may have been legally removed.

[2][3] The next error complained of is the overruling of appellant's demurrer to the complaint. Appellant contends that the alleged newly discovered evidence is impeaching and cumulative in character, that it was in mitigation of damages, and for these reasons was not sufficient to warrant the court in granting a new trial. The newly discovered evidence consisted of admissions of the appellant which were material and pertinent to the issues. No evidence of this character, or on the same subject, had been introduced on the trial. It was not therefore cumulative or impeaching. If this evidence had been discovered and introduced on the original trial, the result might, and probably would, have been different in some respects. Hines v. Driver, 100 Ind. 315, at pages 328, 329;Rains v. Ballow, 54 Ind. 79;Houston v. Bruner, 39 Ind. 376;Humphries v. Marshall, Adm., 12 Ind. 609. Where the newly discovered evidence proves a distinct and material fact, a new trial will not be denied because the evidence may have the additional effect of impeaching the party against whom it may be offered. Blackburn v. Crowder, 110 Ind. 127, 10 N. E. 933.

Appellant has cited us to the cases of Schlencker v. Risley, 3 Scam. (4 Ill.) 483, 38 Am. Dec. 100;Settles v. Threlkeld, 140 Ill. App. 275; and Ham v. Taylor, 22 Tex. 225. In each of the cases cited the court had refused to grant a new trial. In two of them the question was raised by motion, while in the other a complaint for a new trial had been filed. The court in each case held that it was not error to refuse a new...