Richardson v. Penny

• Decision Date: 03 September 1904
• Citation: 1904 OK 118,78 P. 320,14 Okla. 591
• Parties: F. A. RICHARDSON, W. C. MONROE, S.E. RICHARDSON, C. CRAWFORD, CHAS. CHRISTOPH AND CHARLES K. STARKEY v. ELISHA PENNY.
• Court: Oklahoma Supreme Court

1904 OK 118

78 P. 320

14 Okla. 591

F. A. RICHARDSON, W. C. MONROE, S.E. RICHARDSON,C. CRAWFORD, CHAS. CHRISTOPH AND CHARLES K. STARKEY v. ELISHA PENNY.

Supreme Court of Oklahoma

Decided: September 3, 1904

Syllabus

¶0 APPEAL--Newly Discovered Evidence. Where the issues upon a petition for new trial on the ground of newly discovered evidence are tried to the court and there is ample evidence to support the finding of the court, this court will not disturb the finding upon the weight of the evidence.

Error from the District Court of Noble County; before Bayard T. Hainer, Trial Judge.

H. B. Martin, for plaintiffs in error.

John Devereux, for defendant in error.

BURFORD, C. J.:

¶1 This is a proceeding brought pursuant to sec. 4200, Statutes 1893, to secure a new trial in a cause tried and determined in the district court of Noble county, and subsequently affirmed by this court. Richardson et al. v. Penny, 10 Okla. 32, 61 P. 584. The action was commenced by petition, in which it is alleged that new evidence material to the issues in said cause, and which, if introduced, would probably change the results, has been discovered since the trial, and which with reasonable diligence the plaintiffs could not have discovered before. Issues were formed and the cause tried to the court, and after a full and thorough investigation of the cause alleged for a new trial, the court found for the defendants, and denied said petition. The plaintiff below brings the case here for review, and alleges that the trial court erred in not sustaining the application and granting a new trial. No specific error is pointed out. All the evidence offered by the plaintiffs in the court below was admitted, and no objection was made to that offered by the defendant. The only contention is that the decision of the court is not sustained by the evidence, and is contrary to the evidence. We have examined the evidence, and fully concur in the finding of the trial court. There was no sufficient evidence of diligence to warrant the court in granting a new trial. The so-called newly discovered evidence was only cumulative, and was upon a question which was a controlling issue in the case when tried originally. The question related to what was done and who was present at the time a writ of restitution was attemped to be levied. On the trial of the cause at the first trial, the writ was introduced in evidence. It showed who the officer was who levied it. It is not shown that any effort was made to get his evidence at the first trial. Three persons testified that they were present when the...