Stern v. Volz

• Citation: 52 Or. 597,98 P. 148
• Parties: STERN v. VOLZ.
• Decision Date: 01 December 1908
• Court: Oregon Supreme Court

98 P. 148

52 Or. 597

STERN v. VOLZ.

Supreme Court of Oregon

December 1, 1908

Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.

Action by Jacob L. Stern against A.J. Volz, alias John Volz. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff as the assignee of the Stern-Prince Importing Company of the state of Colorado, brought this action in a justice court of coos county, against A.J. Volz, alias John Volz, to recover a balance alleged to be due upon an open account for goods alleged to have been sold and delivered to defendant at Boise, Idaho, by plaintiff's assignor, at the special instance and request of defendant. In addition to the usual averments, it is alleged, that A.J. Volz is sometimes known and goes under the name of John Volz. Defendant answered in the name of John Volz, alleging that to be his true name, and denying that he was ever known as A.J. Volz, as well as all other averments of the complaint. Plaintiff had a verdict and judgment, and defendant appealed to the circuit court of the county, where, upon a trial before a jury, plaintiff again obtained a verdict and judgment for the amount demanded in the complaint, from which judgment defendant has appealed to this court, assigning as errors the admission of testimony over his objection and the denial of am motion for a new trial, based upon insufficiency of evidence to support the verdict and upon newly discovered evidence.

E.D Sperry, for appellant.

L.A Liljeqvist, for respondent

SLATER C.

The only error relied upon and urged by defendant in his brief for a reversal of the judgment is the denial of his motion for a new trial, and that is confined solely to that part thereof based on newly discovered evidence. Such a motion is addressed to the sound discretion of the trial court, and a refusal of a new trial will be reversed only for manifest error or abuse of discretion. 14 Pl. & Pr. 982; Ruckman v. Ormond, 42 Or. 209, 70 P. 707; State v Hill, 39 Or. 90, 65 P. 518. The motion is supported by defendant's affidavit to the effect that since the trial of the cause, and after the rendition of the verdict, defendant learned that he could prove by C.H. Bramley, J.N. Shiria, and P.B. Mauzey that they knew defendant, John Volz, and had known him since April, 1906, and that they saw him in the city of North Bend, Coos county, on or about May 14, 1906; that this evidence is material to his defense, and was not known to him at the time of the trial, and that he never had any reason to believe that these parties knew anything about it; that when he first saw the writing, which was introduced in evidence and which it claimed he signed, he immediately made every effort to find some one who could remember that he was in North Bend on May 14, 1906; that he went to every one whom he thought would know, and made inquiries to find some one by whom he could prove that fact, but found no person other than those produced at the trial.

The showing as to reasonable diligence was not sufficient to justify the court to set aside the verdict. The particular efforts which he made, if any, are not stated, nor are any circumstances or names of any persons of whom he made inquiry given, but only that he made "every effort to find some one," and that "I went to every one whom I thought might known," which is not sufficient. State v. Hill, 39 Or. 90 65 P. 518. Nor is the newly discovered evidence sufficient as to substance and quality. The affidavits of each of said parties are filed in support of the motion, and are of the same general effect as to their acquaintance with defendant, and their knowledge of his presence in or about North Bend on May 14, 1906. The application made of this evidence, by defendant, to the issues of the case as being material to his defense, is to the principal point controverted at the trial, which was the identity of A.J. Volz with John Volz, the defendant, or, in other words, whether plaintiff's assignor had dealt with defendant and sold him the goods under the former name, while he sometimes went under the...