Twin Springs Placer Co. v. Upper Boise Hydraulic Min. Co.
| Decision Date | 02 December 1899 |
| Parties | TWIN SPRINGS PLACER COMPANY v. UPPER BOISE HYDRAULIC MINING COMPANY |
| Court | Idaho Supreme Court |
NEW TRIAL-CUMULATIVE EVIDENCE.-When newly discovered evidence tends to establish a new or independent fact not testified to at the trial, although its effect be to establish a position sought to be established at such trial, such newly discovered evidence is not cumulative within the meaning of the rule prohibiting the granting of a new trial upon newly discovered cumulative evidence.
SAME-JUDICIAL DISCRETION.-The granting of a new trial is a matter largely within the discretion of the trial court, and an order granting a new trial will not be reversed unless there has been a clear abuse of such discretion in granting it.
(Syllabus by the court.)
APPEAL from District Court, Elmore County.
Order affirmed. Costs awarded to respondent.
Heyburn Price, Heyburn & Doherty and S. L. Tipton, for Appellant.
To support a motion for a new trial upon the ground of newly discovered evidence, the affidavits filed in support of the motion must show that the evidence is "newly discovered," and that it could not, with reasonable diligence, have been produced at the trial; that such evidence is not cumulative merely; that it is not merely impeaching in character; that reasonable diligence was used in preparing for the trial; and the "newly discovered evidence" must be such as to render a different result probable on retrial. (Turner v. Morrison, 11 Cal 21; Schellhouse v. Ball, 29 Cal. 608; Ferrer v Home Mut. Ins. Co., 47 Cal. 430; Heath v Scott, 65 Cal. 548, 4 P. 557, and authorities there cited; Outcalt v. Johnston, 9 Colo. App. 519, 49 P. 1058; Hayne on New Trial and Appeal, sec. 92; Pincus v. Puget Sound Brewing Co., 18 Wash. 108, 50 P. 930; Harralson v. Barrett, 99 Cal. 607, 34 P. 342; People v. McCurdy, 68 Cal. 576, 10 P. 207; Chapin v. Goodell, 2 Colo. 608.) Evidence which merely multiplies witnesses to any one or more of those facts before investigated, or only adds other circumstances of the same general character, is cumulative, and not ground for a new trial. (Hayne on New Trial and Appeal, sec. 90; Knuffke v. Knuffe, 8 Kan. App. 857, 56 P. 326; Marshall v. Mathers, 103 Ind. 458, 3 N.E. 121; Klopenstine v. Hays, 20 Utah 45, 57 P. 712; Alabama Midland Ry. Co. v. Johnson, 123 Ala. 197, 26 So. 160.)
W. H. De Witt, Wood & Wilson, W. C. Howie and W. E. Borah, for Respondent.
We might content ourselves in the first instance by resting this appeal upon the well-established rule, so often indorsed by this court, which is to the effect that a motion for a new trial on the ground of the insufficiency of the evidence to justify the decision of the court and newly discovered evidence, is addressed to the sound legal discretion of the court below, and that on an appeal from an order granting a new trial, the appellate court will not reverse the order, unless it appear that there has been a manifest abuse of discretion. It is exceedingly seldom that an appellate court will disturb the action of the lower court, when such court has manifested its dissatisfaction with its own decision by granting a new trial. It is presumed that the court has become dissatisfied with the fairness of the trial or the justice of its decision, and an appellate court will not disturb its ruling. (Pico v. Cohn, 67 Cal. 258, 7 P. 680; P. Rolling M. Co. v. Telegraph Co., 79 Cal. 340, 21 P. 840; Breckenridge v. Croker, 68 Cal. 403, 9 P. 426; Phelps v. Mining Co., 39 Cal. 410; Pierce v. Schaden, 55 Cal. 406; Brossard v. Morgan, ante, p. 479, 56 P. 163.) Casual examination of the record of this case will show that this newly discovered evidence is not cumulative. The test is, Does the newly discovered evidence go to a different point in the establishing of the ultimate proposition? (Kenezleber v. Wahl, 92 Cal. 202, 28 P. 225.) The fact that the testimony may tend to prove the same issue upon which proof was offered on the trial is not enough to make it cumulative, and whether or not it is cumulative is to be determined from its kind and character rather than from its effect. (Winfield etc. Assn. v. McMullen, 59 Kan. 493, 53 P. 481; 1 Greenleaf on Evidence, sec. 2; Flannigan v. Newberg, 1 Idaho 78.) The court might have very properly granted a new trial, solely on the ground that the evidence was insufficient to warrant the decision, in that no discovery of mineral was proven as to the Hot Springs claim. There was no evidence whatever tending to prove a discovery and this was necessary. (Lindley on Mines, sec. 437; Reins v. Murray, 22 Land Dec. 409.)
The appellant commenced this action in the court below to recover certain placer mining claims. After issue joined, the cause went to trial before the court, both parties having waived a trial by jury, and findings and judgment were made and rendered in favor of the appellant. Thereafter the respondent moved for a new trial upon divers grounds, one of which is that respondent has, since the trial, newly discovered evidence material to its defense, which it could not with reasonable diligence have discovered and produced at the trial. The trial judge, after considering the application and numerous affidavits presented on the motion, granted the motion for a new trial. From the order granting a new trial, the plaintiff appealed.
The principal fact to which the evidence was directed on the trial was whether or not the annual labor required by act of Congress to be performed annually upon unpatented mining claims had been performed upon the Eureka Bar and Hot Springs claims for the year of 1896. To prove such annual labor, the plaintiff only introduced one witness--C. H. Blazer, who testified that he and his sixteen year old son worked thirteen days each on the Eureka Bar in 1896; that they worked fourteen days each on the Hot Springs claim in 1896; that a day's work was worth four dollars at that time. Said witness also stated that he did not know what the regular wages of miners were at that time and in that locality. This witness also stated that he lived at Nampa, in Canyon county; that the said claims were situated in Elmore county; that they arrived at the claims on September 28, 1896; that they commenced work on the 28th of September, 1896,...
To continue reading
Request your trial