Walker v. Gray

• Decision Date: 02 June 1899
• Docket Number: Civil 668
• Citation: 57 P. 614,6 Ariz. 359
• Parties: J. E. WALKER, Assignee of the Hartford Banking Company, Plaintiff and Appellant, v. C. H. GRAY, Defendant and Appellee
• Court: Arizona Supreme Court

57 P. 614

6 Ariz. 359

J. E. WALKER, Assignee of the Hartford Banking Company, Plaintiff and Appellant, v. C. H. GRAY, Defendant and Appellee

Civil No. 668

Supreme Court of Arizona

June 2, 1899

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street Judge. Affirmed.

The facts are stated in the opinion.

W. H Stilwell, C. F. Ainsworth, and Kibbey & Edwards, for Appellants.

When there are mutual accounts between parties, the giving of a note, or notes, by one to the other is prima facie evidence of the settlement of the accounts between them, and is, in the absence of fraud, conclusive evidence that the amounts for which such notes are given was at the time of making actually owing from the maker of such notes to the payee mentioned therein. Kinman v. Cannefax, 34 Mo. 147; De Frest v. Bloomingdale, 5 Denio, 304; Dutcher v. Porter, 63 Barb. 15; Lake v. Tyson, 6 N.Y 642; Sperry v. Miller, 16 N.Y. 407; Sprague v Harmon, 82 N.Y. 466; Cotherman v. Cotherman, 58 Mich. 465, 25 N.W. 467; Campbell Printing Co. v. Yorkton, 11 Misc. 340, 32 N.Y.S. 263.

When the verdict is against the weight of the evidence it is the duty of the trial court to set it aside and grant a new trial. Wells & French v. Novak, 73 Ill.App. 403.

Newly discovered evidence as ground for a new trial must be such as probably would have produced a different verdict had it been introduced. Freeman v. Hutchinson, 15 Ind.App. 639, 43 N.E. 16; Skinner v. Walker, 98 Ky. 729, 34 S.W. 233; City of Paris v. Morrell, 52 Ill.App. 121; Peyser v. Coney Island etc. Co., 81 Hun, 70, 30 N.Y.S. 610.

A new trial should be granted for material evidence discovered after the trial, failure to discover it sooner being due to no negligence of the party. Standard Life etc. Ins. Co. v. Askew, 11 Tex. Civ. App. 59, 32 S.W. 31; Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953; Baumgartner v. Hoffman, 9 Utah, 338, 34 P. 294; Heintz v. Cooper, 104 Cal. 668, 38 P. 511; Grogan v. Chesapeake etc. R.R., 39 W.Va. 415, 19 S.E. 563; Atlanta Cons. St. Ry. Co. v. Beauchamp, 93 Ga. 6, 19 S.E. 24; Andrews v. Mitchell, 92 Ga. 629, 18 S.E. 1017; Lafond v. Smith, 8 Wash. 26, 35 P. 404.

Even on conflicting evidence, there is no abuse of discretion in granting a new trial, where the evidence is conflicting and the plaintiff alleges newly discovered evidence. Dougherty v. Lewis, 92 Ga. 573, 17 S.E. 913.

To entitle a party to a new trial, on the ground of after-discovered evidence, the court must be satisfied: 1. That the existence of such evidence came to the knowledge of the party since the trial; 2. That it was not owing to want of due diligence that it did not come to his knowledge sooner; and 3. That if a new trial was granted a different verdict would probably be rendered. Taylor v. Lyon Lumber Co., 13 Pa. Co. R. 235.

Motions for new trials involve the inquiry whether or not substantial justice has been done. Volkommer v. Nassau Elec. R. Co., 23 A.D. 88, 48 N.Y.S. 372.

Where the newly discovered testimony goes to the foundation of plaintiff's claim it cannot be considered as merely cumulative. Berberich v. Louisville Bridge Co., 20 Ky. Law Rep. 467, 46 S.W. 691.

If the newly discovered evidence is sufficient to render a different verdict probable, a new trial may be granted. Smith v. Matthews, 21 Misc. 150, 47 N.Y.S. 96.

Newly discovered evidence which relates to distinct facts of a character different from that offered at the trial, though tending to establish the same ground of claim or defense, is not cumulative. Keeler v. Jacobs, 87 Wis. 545, 58 N.W. 1107; Kline v. Gibson, 8 Ky. Law Rep. 343, 2 S.W. 116; Hilburn v. Harris, 2 Tex. Civ. App. 395, 21 S.W. 572.

Joseph Campbell, and Millay & Bennett, for Appellee.

Where there is evidence to sustain the decision of the trial court the judgment will be affirmed, although the appellate court might have found otherwise if sitting as a trial court. Barry v. Coughlin, 90 Cal. 220, 27 P. 197.

If the testimony of the appellee is believed, he was entitled to recover. It was given credence by the trial court, and the appellate court will not pass upon the credibility of witnesses who have testified in the court below. Olevas v. Olevas, 61 Cal. 386; Hardenburg v. Bacon, 33 Cal. 356.

When one is surprised by the evidence of the adverse party, he must apply to the trial court for time to get evidence to meet it. Ferrer v. Home Mutual Ins. Co., 47 Cal. 416; Doyle v. Hurld, 38 Cal. 456; Schellhous v. Ball, 29 Cal. 608; Live Yankee Co. v. Oregon Co., 7 Cal. 40; Bailey v. Richardson, 66 Cal. 416, 5 P. 910.

OPINION

SLOAN, J.

-- On the fifteenth day of August, 1893, the Hartford Banking Company, a corporation duly organized under the laws of the territory of Arizona, and doing a banking business in the city of Phoenix, executed and delivered to J. E. Walker a deed of assignment of all the property belonging to the bank, -- real, personal, and mixed, -- in trust for the benefit of the creditors of the company. The books of the bank at the time of the assignment showed that appellee, C. H. Gray, was indebted to the bank for overdrafts in the sum of $4,803.89. On the thirteenth day of June, 1895, said assignee brought suit to recover from said Gray the amount of said indebtedness as shown by the books of the bank. The answer of Gray to the complaint in this action contained a general denial, and by way of special defense set up that between the thirtieth day of May, 1895, and the first day of June, 1897, the defendant, for the use and benefit of the plaintiff's assignor, the Hartford Banking Company, advanced and paid over to the Bank of British Columbia the sum of $8,528, in which said sum said banking company was indebted to the Bank of British Columbia; that neither the plaintiff nor said Hartford Banking Company had repaid said sum to the defendant, or any part thereof. By way of further answer and counterclaim, the answer alleged that at various times between the first day of January, 1889, and the first day of July, 1893, said defendant deposited with the said Hartford Banking Company large sums of money, aggregating the sum of thirteen thousand dollars, for the use of defendant (to be drawn out and used by him); that on the day of January, 1893, said defendant demanded of said banking company said sum of thirteen thousand dollars; and that the said bank had failed and refused to pay the same, or any part thereof, -- and prayed that the said Hartford Banking Company be made a party to the action, and that defendant recover judgment for said sum of thirteen thousand dollars, with interest; and that the plaintiff be ordered to pay the same out of any funds he might have belonging to said banking company; and for costs. No answer was filed by the plaintiff in this action to the defendant's counterclaim.

The record discloses that at the time of the institution of the above action there was pending in the district court of Maricopa County an action brought by said C. H. Gray and Mary A. Gray, his wife, against the said Hartford Banking Company and said J. E. Walker, assignee of said company. The object of this suit was to obtain an injunction against Walker, as assignee, restraining him from proceeding with the sale of certain premises owned by plaintiffs under a judgment obtained by the Bank of British Columbia against said plaintiffs for the sum of $10,057.82, including interest and costs, and the foreclosure of certain mortgage liens against said premises, which said judgment had been assigned to said Walker, as the assignee of said Hartford Banking Company. As a ground for said relief, plaintiffs in this suit set up that the said judgment represented an indebtedness which had been evidenced by two promissory notes of five thousand dollars each, each secured by a mortgage on premises belonging to said C. H. and Mary A. Gray, and that these notes and mortgages were given to said Hartford Banking Company without any consideration whatever, and were accommodation paper merely. The complaint in injunction further alleged that said Gray had paid the Bank of British Columbia on said notes and mortgages the sum of $8,520, for which judgment was asked against said Walker, as assignee, for said amount, together with the costs.

When these two cases were called for trial, they were, by the consent of parties, tried together; the testimony in the injunction case being first taken, and by stipulation, so far as applicable, was considered as offered in the case of Walker, as assignee, against C. H. Gray. In the injunction suit the court found that the plaintiffs had failed to establish any equitable ground for enjoining the enforcement of the judgment obtained by the Bank of British Columbia, and assigned to Walker as assignee, upon which judgment there was an unpaid balance of $5,154.51, and dismissed the action.

In the suit of Walker, assignee, against C. H. Gray, the findings of fact made by the court were as follows: "First. That on the 15th day of August, 1893, the Hartford Banking Company executed and delivered to the plaintiff a deed of assignment in trust and for the benefit of all its creditors, of all the property belonging to said banking corporation, and that plaintiff is the duly qualified and acting trustee of said corporation. Second. That in divers sums and at divers times between the 1st day of January, 1889, and the 1st day of July, 1893, the said defendant, C. H. Gray, deposited with the Hartford Banking Company, to be placed to the credit of said defendant, and to be drawn out on checks of said defendant when he should so elect, the total sum of $51,851.36, and with said sum so deposited by defendant with the said Hartford Banking Company, was included the sum of...