16 Iowa 121 | Iowa | 1864
The statute declares that, where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision,,, was rendered or made, the application may be made by petition filed, as in other cases, not later than the second term after the discovery; on which notice shall be served and returned as an original notice; and the defendant held to appeal’, as in an original action. The facts stated in the petition shall be considered as denied, without answer. The case shall be tried as other cases, by ordinary proceedings, but no petition shall be filed more than one year after final judgment, was rendered. Rev., 3116.
The statute is to have a reasonable construction, and to say that if the grounds are discovered at the moment of adjournment, or at so late an hour as tc render it impossible to then present them, the party shall be concluded and denied relief, would give weight and prominence to the letter instead of the spirit of the law. This is never allowed in the construction of a statute, and is especially objectionable when applied to one remedial in its nature.
II. It is next insisted that the Court erred in its findings upon the facts shown, as also in the final order, granting a
We cannot adopt the theory of the appellant that any. of the proposed testimony was impeaching. It appears that the jury relied upon the testimony of the defendant himself. The newly discovered evidence did not relate to his character for truth and veracity. It was not proposed even to' show that he had made statements contradicting in terms those made on the trial. But by his witness it was proposed to prove that he had made admissions and had conversations entirely inconsistent with the whole theory of his defense, as developed by the testimony. This was strictly original and not impeaching evidence. It related to admissions made by the party to the record, and it is a misuse of terms to speak of it as impeaching. The fact that he was sworn as a witness cannot change its character. It would have been admissible if he had not been a witness. And we go further and say, that we should hesitate long before applying in all its strictness the rule contended for, that a new trial should not be allowed to give the party an opportunity to introduce impeaching testimony when it is to affect the evidence of the party himself.
Certain it is, if the Court below, cognizant of the whole facts, has, under such circumstances, ordered a new trial, we should have to be thoroughly satisfied that the discretion had been abused before interfering. Not being thus satisfied in this instance, we cannot, thus far, say that the findings were erroneous.
It is, however, further insisted, that the newly discovered evidence was merely cumulative and that, therefore, the new
. In principle, the ease is not easily distinguishable from Gardner v. Mitchell, 6 Pick., 114. There plaintiff had a verdict for an alleged breach of contract for the sale of certain parcels of oil. Defendant moved for a new trial upon the ground that he could prove by two witnesses certain conversations or confessions of plaintiff which would essentially change the complexion of the case. After holding that if the evidence was. only cumulative it would not furnish cause for a new trial, it is said: “ This is of a different character. As to the oil, which is made the subject of complaint, there is a confession of one of the plaintiffs that it waá as. good as he expected. This is a new fact which, was not before in the case. The verdict was general, and apparently injustice has been done.” A new trial was granted. And see Chambers v. Same, 2 Marsh. (Ky.), 349; Guyott v. Butts, 4 Wend., 579; Watson v. Delafield, 2 Caines, 224; Reed v. McGrew, 5 Ohio, 386; Barker v. French, 18 Vt., 460.
It is difficult to obtain or give a correct or accurate definition of this character of evidence. We can well understand that a new witness to handwriting or dates would but add to that given at the trial and would be cumulative. But if it relates to a release or something of that kind, discovered after the trial, we can see at once that it would not fall within the objection. In such instances we have cases well marked and defined. Another case, however, may be of so. doubtful a character that it is next to impossible to
Before .dismissing this part of the case, one other remark may be made. It certainly is not clear and unquestionable that this testimony is cumulative. And when there is doubt as to its character, it becomes to a great extent, if not purely, a matter of discretion, and this court ought not to interfere. And this remark applies with all its force to the point of. negligence or diligence, and matters of a kindred nature in this and similar oases. It is always difficult for the-appellate tribunal to more than approximate to a knowledge of the facts as they actually occurred at the trial The judge at nisi prim has a much better opportunity for seeing and judging how the testimony given and that afterwards discovered bears upon that issue, to determine whether the facts offered are similar or dissimilar, and though we might incline against him .upon the question as an original one, his ruling should not be reversed unless the discretion has clearly been abused.
But it must also be remembered that, by the statute, the case made in such a petition is to be tried like other cases, by ordinary proceedings, and that the same presumptions obtain as to the correctness of the findings in .the court below, where they are stated and embodied in the record. Not only so, but when a new trial has been granted, it must be shown very clearly that the Court has abused its discretion to justify interference. Appellate courts are
• But did the party use due diligence before the trial in obtaining the proposed testimony, or could he have obtained it by the use of such diligence. Under this inquiry one or two matters may be noticed. It perhaps sufficiently appears that plaintiff’s attorney knew a fact or facts to which he might have testified, and which would have tended strongly to rebut or destroy the case made by the testimony of defendant. And it is now insisted that as he was a competent witness, plaintiff was negligent in not h'aving him sworn. In this proposition we cannot concur. "We are well aware of the just and commendable views of duty entertained by members of the profession upon this subject. No attorney having a just conception of his true and proper position will willingly unite the character-of counsel and witness in the same case. For experience has shown that those who, on repeated occasions, allow themselves to be thus used, are certain to feel most keenly the consequences of their indiscretion. Some courts have excluded such' testimony entirely, and this of course not because the source of proof is regarded as unreliable, but because public policy and the integrity and welfare of the profession dictate that no one should be at the same time both advocate and witness for his client Such testimony is not excluded in this State, but if a party is really taken by surprise, we would not deny him a new trial, because of his failure’ to throw his attorney into the witness box, to, if possible, save himself from the consequences of such surprise. ‘Where the case is one of contest involving conflicting testimony, if, to promote the ends of justice, his
In the first place the statement itself implies surprise. And in the next place it was introduced arguendo, rather than as the assertion of positive knowledge. We should be unwilling to permit a statement thus made to weigh more than the testimony of client and attorney that they were taken by surprise.
It is further claimed that it was the plaintiff’s duty when thus surprised to have asked for a .continuance, instead of taking the chances of a trial. But to concede this, it seems to us, would deny a new trial in every case of surprise. Suppose the surprise is clear that the party is free from negligence, and unless the Court interposes, injustice will certainly be done. Will it be claimed in such a case that a new trial should not be granted ? See McManus v. Finan, 4 Iowa, 283; Millard v. Singer, 2 G. Greene, 144. And yet how or upon what principle could it be granted if the party in every instance is concluded by his failure to ask a
Affirmed.