Museus v. Geyer, 9429

• Court: Supreme Court of South Dakota
• Writing for the Court: SMITH
• Citation: 75 S.D. 381,66 N.W.2d 63
• Parties: Jewell MUSEUS and Elmer Mattison, Plaintiffs and Appellants, v. Frank GEYER, doing business as Geyer's Cleaners, Defendant and Respondent.
• Docket Number: No. 9429,9429
• Decision Date: 30 September 1954

Page 63

66 N.W.2d 63 75 S.D. 381 Jewell MUSEUS and Elmer Mattison, Plaintiffs and
Appellants,
v.
Frank GEYER, doing business as Geyer's Cleaners, Defendant
and Respondent. No. 9429. Supreme Court of South Dakota. Sept. 30, 1954.

[75 S.D. 383] William F. Clayton, Sioux Falls, for plaintiffs and appellants.

Lacey & Parliman, Sioux Falls, for defendant and respondent.

SMITH, Presiding Judge.

The action is on a promissory note of defendant dated July 5, 1952 in the principal sum of $501.45 payable to the Servu Realty Company. The complaint alleges that plaintiffs are holders in due course. The answer denies that allegation, and avers that the note was given without consideration under promises by Abe Ogdie, the president of Servu Realty Company, that it would not be negotiated and he would pay it out of his drawing account. A verdict was directed by the trial court for plaintiffs at the close of the testimony. After hearing on an application of defendant the court vacated the verdict and granted a new trial on the grounds of newly discovered evidence and accident or surprise. The appeal is by plaintiffs from that order.

The rule that, to induce this court to interfere with an order granting a new trial, there must be a clear showing that the order resulted from an abuse of judicial discretion has become axiomatic. It is the contention of plaintiff that this record clearly reveals such an abuse of discretion because the showing of defendant failed utterly to invoke the power of the court to grant a new trial.

The causes for granting a new trial include '(3) Accident or surprise which ordinary prudence could not have guarded against; (4) Newly discovered evidence, material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial'. SDC 33.1605. As we have indicated, these are the causes on which the questioned order is expressly grounded by the trial court. We elect to consider first the sufficiency of the showing of defendant dealing with newly discovered evidence.

[75 S.D. 384] The complaint alleges in broad terms that the note was transferred and endorsed to plaintiffs for a valuable consideration and that they are holders in due course. At the trial the plaintiff Museus testified that the note was transferred to plaintiffs

Page 65

on July 21, 1952 as part of the consideration for a conveyance by plaintiffs to the Servu Realty Company of a business building and lot located in Baldwin, Wisconsin. He testified that the total consideration for the deed was $5,000 and the note was not discounted. After the trial defendant's counsel procured a certified copy of the deed and discovered it bore only $2.20 in cancelled revenue stamps. This deed was presented to the trial court as newly discovered evidence. It is said by defendant that the deed establishes the falsity of Museus' testimony, and is sufficient, because of the unusual discount allowed by the Servu Realty Company, to warrant an inference that plaintiffs are not holders in due course.

Defendant's showing of newly discovered evidence also includes an affidavit of his daughter. It appears from the record that this daughter was the wife of the above named Abe Ogdie, president of Servu Realty Company. The daughter was living with Ogdie in 1952 but has since been divorced. Her affidavit purports to detail her knowledge with reference to the execution of defendant's note, and to describe the relationship between Ogdie and plaintiff Museus. She also recites statements made to her by Ogdie about the transfer of her father's note to Museus.

In his application for new trial the defendant does not attempt to justify his failure to produce the deed and his daughter's testimony at the trial; in fact, his showing is completely silent on the element of due diligence.

The settled record as a whole reveals that defendant went to trial on the issue of whether plaintiffs were holders in due course of his promissory note without any knowledge of the facts surrounding the transfer of the instrument to plaintiffs. Procedure was available in SDC 33.1002, dealing with motions to make more definite and certain, and for a bill of particulars, and in SDC 36.0503, dealing with the examination of adverse parties before trial, [75 S.D. 385] through which he could have obtained all of the information he gained at the trial. It is apparent that by the most ordinary diligence in preparation for trial defendant would have been able to discover and produce at the trial everything contained in his showing of newly discovered evidence. Such a lack of diligence is fatal to a motion for new trial on the ground of newly discovered evidence. SDC 33.1605(4); Gaines v. White, 1 S.D. 434, 47 N.W. 524; Farmers Union Agricultural Credit Corp. v. Northwest Security National Bank, 66 S.D. 276, 281 N.W. 505.

In Gaines v. White, supra [1 S.D. 434, 47 N.W. 525], this court said,

'The application must not only show that the new evidence was discovered too late to have been used at the trial, but that it was of such a nature, or so concealed, that it could not have been, by the use of reasonable diligence, discovered and produced at the trial. If new trials were legally granted in cases like this, the interests of society would be injuriously affected, and the administration of justice greatly disturbed. The adverse party is entitled to have an end put to the litigation, and his legal rights finally established. The good of all, society and litigants, requires that a party should be diligent in securing not part, but all, of his evidence, in order that one action may settle the controversy. If lax rules were to prevail, then great delays, and protracted and vexatious litigation, would be the consequence. If a defeated litigant could obtain a second trial upon the ground of newly-discovered evidence...