Mercer v. King

• Decision Date: 24 September 1897
• Parties: MERCER v. KING.
• Court: Kentucky Court of Appeals

42 S.W. 106

MERCER v. KING.

Court of Appeals of Kentucky.

September 24, 1897

Appeal from circuit court, Whitley county.

"Not to be officially reported."

Action by T. J. Mercer against Daniel King. Judgment for defendant, and plaintiff appeals. Reversed.

Johnson & Denham and C. W. Lester, for appellant.

DU RELLE, J.

This was a petition for a new trial, under section 344 of the Civil Code, averring that grounds had been discovered after the term at which the decision was rendered. A demurrer to the petition for a new trial was sustained, and the sole question for decision is whether the petition sets up newly-discovered evidence "of such permanent and unerring character as to preponderate greatly, or having a decisive influence upon the evidence to be overthrown by it." Allen v. Perry, 6 Bush, 85. The original action, a new trial of which is sought in this proceeding, was upon a lost writing. It appears that an issue was formed upon certain provisions alleged by the defense to have been contained therein, and upon this question there was a direct issue formed by the pleadings and a direct conflict of testimony. The petition for new trial alleges that the writing has been found. It is true that the writing is cumulative evidence of the existence or nonexistence of the provisions averred to be contained in it, but it is evidence of higher dignity than the secondary evidence introduced as to its contents, and has a decisive character upon the issue as to what provisions were contained in it, and would doubtless have a preponderating influence in the decision of that issue. Mercer v. Mercer, 87 Ky. 21, 7 S.W. 307. If the averments of the petition are true,-and for the purpose of the demurrer they must be so taken,-it would seem that the petitioner was entitled to a new trial, and the demurrer should have been overruled. For the reasons given, the judgment is reversed, and the cause remanded, with directions to set aside the judgment sustaining the demurrer, and for further proceedings consistent with this opinion.