McAllister v. Bardsley

• Citation: 215 P. 852,37 Idaho 220
• Parties: J. H. MCALLISTER, Respondent, v. J. L. BARDSLEY, S.D. BUNDY and WADE H. ROSS, Appellants
• Decision Date: 28 May 1923
• Court: United States State Supreme Court of Idaho

215 P. 852

37 Idaho 220

J. H. MCALLISTER, Respondent, v. J. L. BARDSLEY, S.D. BUNDY and WADE H. ROSS, Appellants

Supreme Court of Idaho

May 28, 1923

CONTRACTS-RESCISSION-FRAUDULENT REPRESENTATIONS-NEW TRIAL-NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE.

1. Where a new trial is granted, the trial court should set out in its order the particular grounds upon which the same was granted, and, where it fails to do so, it becomes necessary for this court to examine the entire record to ascertain whether or not the order can be sustained on any ground specified in the motion or as disclosed by the entire record.

2. The granting or refusal to grant a motion for a new trial is addressed to the sound discretion of the trial court and in the exercise of this discretion, it will not be disturbed except in a case of manifest abuse.

3. From an examination of the record in this case, held that the controlling reason for granting the motion for a new trial was that of newly discovered evidence.

4. Even though it appear from affidavits filed that newly discovered evidence may be cumulative, where such evidence involved the main issue and it is probable that its effect would be to produce a different judgment on the retrial, a new trial should be granted.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to rescind contract and for damages. Judgment for defendants and plaintiff moved for a new trial and motion was granted. Appeal from order granting new trial. Order affirmed.

Order affirmed. Costs awarded to respondent.

T. A Walters and H. E. Wallace, for Appellants.

"Alleged newly discovered evidence which is mainly cumulative and which was not beyond the reach of the parties at the time of the trial is not ground for a new trial." (Knollin v. Jones, 7 Idaho 466, 63 P. 638; Hackman v Espey, 12 Idaho 755, 88 P. 80; Hall v. Jensen, 14 Idaho 165, 93 P. 962; Wood v. Moulton, 146 Cal 317, 80 P. 92; State v. De Marias, 27 S.D. 303, Ann Cas. 1913D, 154, 130 N.W. 782; Wilson v. Plank, 41 Wis. 94; Kringle v. Kringle, 123 Iowa 365, 98 N.W. 882; Hemmer v. Burger, 127 Iowa 614, 103 N.W. 957; Rockwell v. Ketchum, 149 Iowa 507, 128 N.W. 940.)

The newly discovered evidence must be set forth, and it must also appear from the affidavit that the plaintiff could not with the exercise of reasonable diligence have discovered the same and produced it at the trial. (Amonson v. Stone, 30 Idaho 656, 157 P. 1029; Stolz v. Scott, 28 Idaho 417, 154 P. 982; Hall v. Jensen, supra.)

Newly discovered evidence is ordinarily looked upon with disfavor on motion for a new trial as ground thereof, and the party relying thereon must make a strong showing of diligence on his part in preparing for the trial. (In re Cover's Estate, 188 Cal. 133, 204 P. 583 (and cases cited); 29 Cyc. 883, 884.)

The court could not legally consider the affidavit filed with him personally and not served upon the defendants, after the time the motion had been submitted. (C. S., sec. 6890, subd. 1.)

The plaintiff was advised before the trial of the materiality of the testimony of Lewis, but went to trial without him because his whereabouts was unknown, without moving for a continuance, and is not now entitled to a new trial on the ground of newly discovered evidence because the where abouts of Lewis was learned during the trial. (Scanlon v. San Francisco & S. J. V. Ry. Co., 128 Cal. 586, 61 P. 271; 29 Cyc. 885 and 886.)

E. J. Dockery and J. P. Pope, for Respondent.

A motion for a new trial is addressed to the sound discretion of the court. (Hafner v. Fitzpatrick (Wash.), 203 P. 3; K. K. K. Medicine Co. v. Harrington, 83 Okla. 201, 201 P. 496; Missouri K. & T. Ry. Co. v. James, 61 Okla. 1, 159 P. 1109; Danciger v. Isaacs, 82 Okla. 263, 200 P. 164; Hall v. Jensen, 14 Idaho 165.)

A motion for a new trial on the ground of newly discovered evidence and of diligence in connection therewith is addressed to the sound discretion of the court, and the court has a very large discretion in the granting of a new trial on that ground. (Danciger v. Isaacs, supra; Roe v. Snyder, 100 Wash. 311, 170 P. 1027.)

No fixed standard can be established for the measurement of diligence in each case; no iron-bound rule can be prescribed, for every case must be governed by the circumstances surrounding it. (20 R. C. L. 292; State v. Stowe, 3 Wash. 206, 28 P. 337, 14 L. R. A. 609; State v. Lumpkin, 31 Idaho 175, 169 P. 939; Roe v. Snyder, supra.)

The filing of the second affidavit of J. P. Pope showing diligence is a matter within the discretion of the trial judge, and the fact that it was not filed at the time of the motion for new trial or within ten days thereafter should not prevent it from being filed thereafter and considered by the court. (Darling v. Fremstadt, 22 Idaho 684, 127 P. 674, and cases therein cited; Stockdale v. City of Renton (Wash.), 210 P. 360.)

The evidence contained in the affidavit of Roger Lewis cannot be considered merely cumulative, but is of so controlling a character as would probably lead to a different result. (C. S., sec. 6888, subd. 4; State v. Stowe, supra; State v. Lumpkin, supra; L. R. A. 1916C, note, pp. 1182--1194; Oberlander v. Fixen, 129 Cal. 690, 62 P. 254.)

BUDGE, C. J. Dunn and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, C. J.

This action was brought by respondent to rescind a contract for the sale and purchase of real estate and personal property on the ground of fraudulent representations made by appellants before the contract was entered into and to recover the money paid thereon, together with damages. The cause was tried to the court without a jury. Findings of fact and conclusions of law were made and filed and judgment thereon entered in favor of appellants. A motion for new trial was duly made and granted. This appeal is from the order granting the motion for a new trial.

Six assignments of error are specified and relied upon for reversal of the order granting the motion for a new trial. We shall consider only such as we deem of sufficient importance to dispose of this appeal. The first error to be considered is the refusal of the court to strike from the record in support of the motion what is designated as the second affidavit of J. P. Pope, Esq. This particular affidavit was mailed to the trial judge some time after the hearing of the motion and was not served upon opposing counsel. However, counsel was notified by letter of the forwarding of this affidavit. Some time after the affidavit was received by the judge it was filed with the clerk and no doubt was considered by the court in passing upon the motion. Mailing an affidavit to the judge subsequently to the submission of the motion for a new trial is not commendable and had the trial court struck this affidavit from the files, its action would have been sustained upon appeal. It is within the power of the court to extend the time for the filing of affidavits in support of or in opposition to a motion for a new trial, but in the absence of such an order it is seriously questionable whether such affidavit should be considered. Since the trial court considered the additional affidavit we are not disposed, under the facts of this case, to strike it, and have given it due consideration.

The granting or refusal to grant a motion for a new trial is addressed to the sound discretion of the trial court and in the exercise of this discretion, it will not be disturbed except in a case of manifest abuse. (Jacksha v. Gilbert, 4 Idaho 738, 44 P. 555; Brossard v. Morgan, 6 Idaho 479, 56 P. 163; Wolfe v. Ridley, 17 Idaho 173, 20 Ann. Cas. 39, 104 P. 1014; Say v. Hodgin, 20 Idaho 64, 116 P. 410.)

It is insisted that the showing made in support of the motion for a new trial is wholly insufficient and therefore the granting of the motion was an abuse of discretion by the court. The particular ground or grounds upon which the motion was granted are not stated in the court's order. As has been frequently said by this court, where a new trial is granted the trial court should set out in its order the particular ground or grounds upon which the new trial is granted otherwise it becomes necessary to examine the entire record for the purpose of ascertaining whether or not the order can be sustained on any ground, either specified in the motion or as disclosed by the entire record. (Buckle v. McConaghy, 12 Idaho 733, 88 P. 100; Lowe v. Long, 5 Idaho 122, 47 P. 93; Cox v. Cox, 22 Idaho 692, 127 P. 679; Sweetzer v. Mellick, 5 Idaho 783, 51 P. 985; Smith v. Wallace Nat. Bank, 27 Idaho 441, 150 P. 21.) Much time and labor would be saved if...