Nicholson v. Metcalf

• Decision Date: 10 November 1904
• Parties: NICHOLSON et al. v. METCALF.
• Court: Montana Supreme Court

78 P. 483

31 Mont. 276

NICHOLSON et al. v. METCALF.

Supreme Court of Montana

November 10, 1904

Commissioners' Opinion. Appeal from District Court, Silver Bow County; E. W Harney, Judge.

Action by D. D. Nicholson and another against George Metcalf, as administrator of the estate of Peter B. Dunn, deceased. There was judgment for defendant, and from an order granting a motion for a new trial he appeals. Reversed.

E. F Fleming and W. E. Moore, for appellant.

M. D Kelly, for respondents.

CLAYBERG C. C.

This is an appeal by Metcalf from an order granting a new trial. The only ground of the motion for a new trial was newly discovered evidence. The only affidavit filed showing that evidence was newly discovered is that of plaintiffs. This affidavit, in so far as the discovery of the evidence and the showing of diligence in that regard is concerned, is as follows: "That subsequent to the trial of said cause, to wit, on the 12th day of December, A. D. 1902, I have discovered evidence which will establish the fact that myself and my co-plaintiff in said action," etc. Then follows a statement of the evidence which has been discovered. The affidavit then continues: "I did not know of the existence of said evidence at the time of the trial, and could not, by the use of reasonable diligence, have discovered or produced the same upon the former trial. The name of the witness by which I can establish the facts herein set forth is E. A. Briggs, now residing at Centerville, in Silver Bow county, Montana; that I did not for eighteen years prior to the 12th day of December, A. D. 1902, know the whereabouts of said Briggs." The affidavit of Briggs also appears in the record, supporting the affidavit of plaintiffs as to the facts to which he would testify, and stating that he was present and heard the conversation upon which plaintiffs' cause of action was based.

The statute concerning new trials provides as follows: "The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: *** (4) Newly discovered evidence material for the party making the application which he could not with reasonable diligence have discovered and produced at the trial." Section 1171, Code Civ. Proc. We are of the opinion that the affidavit does not contain a sufficient showing of diligence, as contemplated by the statute, to warrant the order appealed from. Rand v Kipp, 27 Mont. 138, 69 P. 714; Gregg v. Kommers, 22 Mont. 511, 57 P. 92; Caruthers v. Pemberton, 1 Mont. 111; Butler v. Vassault, 40 Cal. 74; Hendy v. Desmond, 62 Cal. 260; Bagnall v. Roach, 76 Cal. 106, 18 P. 137; Barton v. Laws, 4 Colo. App. 212, 35 P. 284; State v. Power, 24 Wash. 34, 63 P. 1112, 63 L. R. A. 902; Bradley v. Norris, 67 Minn. 48, 69 N.W. 624; 1 Spelling on New Trial & Appeal, §§ 209-218. Under these authorities it was incumbent upon plaintiffs to show that they had been guilty of no laches, and that failure to produce the evidence on the trial could not be imputable to lack of diligence on...