Morrison v. Carey

• Decision Date: 09 October 1891
• Docket Number: 15,922
• Citation: 28 N.E. 697,129 Ind. 277
• Parties: Morrison v. Carey et al
• Court: Indiana Supreme Court

28 N.E. 697

129 Ind. 277

Morrison v. Carey et al

No. 15,922

Supreme Court of Indiana

October 9, 1891

From the Porter Circuit Court.

Judgment affirmed.

A. L Jones, N. L. Agnew and D. E. Kelly, for appellant.

S. O Spencer and E. D. Crumpacker, for appellees.

OPINION

Coffey, C. J.

On the 21st day of January, 1888, the appellee William H. Carey commenced an action in the Lake Circuit Court against the appellant, to recover on an account for work and labor, for personal property sold and delivered, for money loaned and money paid out and expended by the appellee for the use of the appellant. The venue was changed from Lake to Porter county, where the cause was tried, resulting in a judgment on the 9th day of November, 1889, in favor of Carey for the sum of three thousand dollars. The judgment was assigned to the appellee Crumpacker on the 7th day of January, 1890.

This action was commenced on the 26th day of May, 1890, to obtain a new trial on account of newly-discovered evidence.

A trial of the cause resulted in a finding and judgment for the appellees, from which this appeal is prosecuted.

This is an independent action, wholly disconnected from the one in which the judgment was rendered, and as such must stand or fall upon its own merits. Hines v. Driver, 89 Ind. 339; Glidewell v. Daggy, 21 Ind. 95; Sanders v. Loy, 45 Ind. 229; Hiatt v. Ballinger, 59 Ind. 303.

It is the well settled rule that applications of the kind now before us are regarded by the courts with disfavor. It is said: "Motions of this kind ought to be received with great caution, because there are few cases tried in which something new may not be hunted up, and because it tends very much to the introduction of perjury, to admit new evidence after the party has lost the verdict, has had an opportunity of discovering the points both of his adversary's strength and his own weakness. * * It is infinitely better that a single person should suffer mischief than that every man should have it in his power, by keeping back part of his evidence and then swearing it was mislaid, to destroy verdicts and introduce new trials at their pleasure." Moore v. Philadelphia Bank, 5 S. & R. 41; Baker v. Joseph, 16 Cal. 173.

In the latter case cited it was said: "Applications for this cause are regarded with distrust and disfavor. The temptations are so strong to make a favorable showing, after a defeat in an angry and bitter controversy involving considerable interest, and the circumstances that the testimony has just been discovered, when it is too late to introduce it, so suspicious, that courts require the very strictest showing to be made of diligence, and all other facts necessary to give effect to the claim."

The law favors the diligent, and punishes the negligent. A party seeking a new trial on account of evidence discovered since the termination of the controversy between him and his adversary must, if he succeed, establish every element of such a case strongly, clearly, and satisfactorily. The strong presumption is that by the proper effort the party might have discovered the evidence and used it on the trial; and that his failure to do so is owing to intentional omission, or to unpardonable neglect, and to...