Seward v. Cease

• Decision Date: 31 January 1869
• Parties: RASBERRY SEWARDv.JOSEPH CEASE et al.
• Court: Illinois Supreme Court

50 Ill. 228

1869 WL 5211 (Ill.)

RASBERRY SEWARD

v.JOSEPH CEASE et al.

Supreme Court of Illinois.

January Term, 1869.

APPEAL from the Circuit Court of Mason counnty; the Hon CHARLES TURNER, Judge, presiding. This was a bill in chancery, by the appellant, against appellees, brought in the Mason County Circuit Court, at its October term, 1867, to set aside a judgment at law obtained in the same court, March, 1867. The bill alleges that the only evidence which the appellees were able to bring against the appellant in the suit at law, was the testimony of one Isaac J. Hughes, who testified that he heard the appellant hire two men by promising them $20 if they would tear up the brick machine of the appellees. This took place May 14, 1865, and on the following night he saw appellant with these two men go and take two wheels off the brick machine, which entirely destroyed its usefulness; and although this testimony was uncorroborated by a single witness or a single circumstance; although Hughes was abundantly impeached, directly, by numerous witnesses on the trial, and by proof of many contradictory statements which he had made in reference to the matter; although he admitted on the witness stand that he would lie any time to screen a friend, and although the appellant testified positively that he did not tear up the machine, yet, after all this testimony, the jury found a verdict of guilty against the appellant, and the court refused him a new trial.

Before the trial, the two Spellmans, who were said to have participated in tearing up the brick machine, left this State, and the appellant never could hear where they went, or get any trace of them, although he made diligent inquiry for them.

Soon after the March term of 1867, of the circuit court, Hughes, having left Mason county, and becoming dissatisfied and repentant of what he had done, confessed, in presence of Boyer, that he had sworn falsely in the case, and wished to retract it. This he embodies in an affidavit for the benefit of appellant. Afterwards, having removed to Benton county, Iowa, he still makes another affidavit, more complete in its terms than the former, in which he, in the most solemn manner, retracts his testimony, and swears that on a new trial he would retract all his testimony so falsely given. These two affidavits and Boyer's affidavit are referred to in the bill, and made exhibits.

On the hearing, the bill, on motion of the defendant, was dismissed, and the relief prayed for refused.

The ruling of the court below, upon this motion, is assigned as error.

Mr. LYMAN LACEY, for the appellant.

“It is not enough that the person asking aid of chancery, shows that the verdict in the trial at law is not just, but he must show that the evidence discovered, when connected with the facts proven on the trial at law, entitles him to a verdict in his favor.” 3 Graham & Waterman on New Trials, 1537.

“When newly discovered evidence goes merely to impeach a witness at the trial, it will not be admissible; but not so if it utterly destroys the former testimony.” Ib. 1542; Pegram v. King, 2 Hawks, N. C., p. 255; again on p. 606, and cases there...