153 N.W. 419 | N.D. | 1915
Lead Opinion
This is an appeal from an order of the’ district court of Ward county granting a new trial for newly discovered evidence, The case was tried to a jury and a verdict returned in favor of the plaintiff for $1,785.46. Judgment was entered pursuant to the verdict on March 14, 1913. Several affidavits were submitted ill support of the motion for new trial. The newly discovered evidence is set forth in the affidavitt of McKenzie St. Clair, a witness who testified in behalf of the plaintiff upon the trial of the action. This affidavit is
“That an examination of the ‘Exhibit A’ shows that the word ‘eight,’ which was printed in said blank, was erased, and the word “six” written therein in ink, and affiant does not know whether said change was on the paper at the time he is alleged to have signed his name on said purported instrument or not; that affiant saw the contract made between the defendant and E. D. Garner relative to the trade of land for horses, and that under said contract there was to be nothing completed until the following March,, and that there was nothing in said contract making it necessary for the execution of ‘Exhibit A,’ or any other notes, at the time said note ‘Exhibit A’ is dated.
“That reference is made to the paper hereto attached marked ‘Exhibit A,’ which purports to be the photograph of said alleged note, ‘Exhibit A’ used in said action.
“Affiant further states that the facts herein stated were not stated by him prior to the said trial, nor prior to the time he gave his deposition in Minneapolis; that prior to giving his deposition for said action, he had not since talked with either Mr. Adams or with the attorneys for Mr. Adams, and that in giving his • deposition he referred to those
A motion for a new trial on the ground of newly discovered evidence is addressed to the sound judicial discretion of the trial court, and the appellate court will not interfere unless manifest abuse of such discretion is shown. And the appellate court is more reluctant to interfere in a case where a new trial has been granted than where it has been denied. This rule is so well settled and elementary that it is unnecessary to cite any authority in support thereof. In fact, appellant’s counsel concedes that the sole question for determination on this appeal is whether or not the trial court grossly abused its discretion in ordering the new trial. No statement of the case was settled, hence, there is no opportunity for this court to ascertain what testimony was produced upon the trial of the action, with the exception of the testimony of St. Clair and two other witnesses, which was taken by deposition. The trial judge, however, had both seen and heard the witnesses, and was familiar with their testimony. He was also familiar with all the proceedings had in the action, and while it is somewhat difficult for this court to see that the proposed additional change in the testimony of the witness St. Clair is of sufficient importance to warrant a new trial, or that the defendant acted with the required degree of diligence, still these matters were presented to the trial court for determination, and he was in better position to decide these questions than in this court. This case has been tried but one time. A different rule might apply if there had been more than one trial. Under all the circumstances we do not feel justified in saying that the trial court manifestly abused its discretion in granting a new trial, and the order appealed from is therefore affirmed.
Rehearing
On Petition for Kehearing. (Filed May 18, 1915.)
An able and exhaustive petition for rehearing has been field herein, wherein it is earnestly argued that the former opinion is erroneous for the reason that a new trial is granted on the ground of newly discovered evidence which is cumulative and impeach
And the appellate court will uphold the ruling of the trial court granting a new trial on a discretionary ground when it would have refused to disturb the decision of that court had a new trial been denied,* and will sustain such order even though the trial court would have been justified in reaching a different conclusion, and although the appellate court might deem a different conclusion the better one. Braithwaite v. Aiken, 2 N. D. 57, 62, 63, 49 N. W. 419; People v. Goldsworthy, 130 Cal. 600, 62 Pac. 1074. See also St. Anthony & D. Elevator Co. v. Martineau, ante, 425, 153 N. W. 416.
“The rule has always been, whether the discretionary act was authorized by judicial precedent or by act of legislature, that an exercise of discretion on the part of the trial court would be disturbed only for an abuse thereof. It is therefore important to know when discretion has been abused. This is not always easy to determine, but the -task is greatly simplified when it is remembered that the discretion referred to is legal, and never arbitrary. There must be a legal ground or excuse for every act of the court, and not a mere arbitrary exercise of power by the will of the individual who happens to occupy the position of judge. Not only must there .be a legal ground or excuse in support of the exercise of discretionary power, but there must be some fact or reason against same, otherwise there would be no basis for an exercise of discretion. Moreover, the discretion of the court must always be exercised in behalf of justice and fair dealing in the abstract, and manifestly must not be contrary to the principles of justice, or productive of hardship and inconvenience. If this should be the case
“While it may be diffcult to define exactly what is meant by abuse of judicial discretion, and whatever it may imply as to the disposition and motives of the judge, it is fairly deducible from the cases that one of its essential attributes is that it must plainly appear to effect injustice.” Clavey v. Lord, 87 Cal. 413, 25 Pac. 493.
The statute provides that a new trial may be granted, among otners, on the ground of “newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial.” It is conceded that a motion based on this ground is addressed to the sound judicial discretion of the trial court. The discretion vested in a trial court in the determination of such motions is based on the theory “that the judge who tries a case, having the parties, their witnesses and counsel, before him, with opportunity to observe their demeanor and conduct during the trial, and note all incidents occurring during its progress likely to affect the result thereof, is better qualified to judge whether a fair-trial has been had and sustantial justice done than the appellant tribunal.”
It will be observed that the statute prescribes the general conditions under which newly discovered evidence may constitute a ground for a new trial. In the construction of this or similar provisions, certain general rules have been formulated, among which may be found the ones contended for by counsel in the petition for rehearing herein. Although it is generally conceded that no arbitrary or inflexible rule can be laid down, but that the question of whether or not the trial court’s discretion in granting or denying a new trial was properly exercised will largely depend on the peculiar circumstances of each case. In a discussion of this proposition it is said in Bayles on New Trials and Appeals, 2d ed. p. 574: “Motions for a new trial upon the ground of newly discovered evidence are not governed by any well defined rules, but depend in a great degree upon the peculiar cirenm
In cases falling within the principles laid down by the authorities, the courts will follow the established rules. But these rules are not of such universal application' as to be decisive of every case however much it may differ in circumstances from every other. No arbitrary rule can be laid down which will determine in every case whether a party exercised reasonable diligence in procuring evidence for the trial, nor whether the evidence which the party desires to offer on a new trial would be likely to change the result, nor whether he has used due diligence in making his motion.” See also Malmstad v. McHenry Teleph. Co. 29 N. D. 21, 149 N. W. 690.
In Spelling on New Trial and Appellate Practice, it is said: “Although, in every extended discussion of the subject of newly discovered evidence, and in a large percentage of decisions involving it, the terms ‘cumulative’ and ‘merely cumulative’ occur, yet only a thorough and painstaking study of cases and a free resort to the true reasons underlying the decisions are required to convince the mind that these terms are inappropriate and confusing when used detenninatively on this branch of law. It has been in several cases declared, as the result of many other decisions, that new evidence possessing sufficient probative force to render a different result on retrial probable cannot be merely cumulative. . . . Pew, if any, modern cases can be cited in which a new trial was held improperly granted by trial courts on newly discovered evidence possessing the above-mentioned force and qualities, merely because it was cumulative. .. . •. All corroborative evidence is cumulative, but not all cumulative evidence is corroborative. All relevant, competent, and material newly discovered evidence is comulative, but if it be of sufficient probative materiality and force to change the result upon retrial, it is not ‘merely cumulative’.” Spelling, New Trial & App. Pr. § 225.
“In several cases, and with unbroken uniformity in recent cases, the
And in the case of Pengilly v. J. I. Case Threshing Mach. Co. 11 N. D. 249, 253, 91 N. W. 63, 12 Am. Neg. Rep. 619, this court said: "A careful consideration of the plaintiff’s affidavits discloses the fact that some of the newly discovered evidence would, if offered, be inadmissible under the rules of evidence; but, on the other hand, some of
“But we have reached the conclusion that under the facts of this case it is not the province of this court upon an appeal from the order of the trial court granting a new trial, to rule decisively either upon the weight of the newly discovered evidence, onto settle a somewhat dubious question as to whether some of such evidence falls within the rule or the exception to the rule relating to cumulative evidence. The order granting a new trial omits to state the grounds or reasons which operated upon the mind of the trial judge in making the order, and hence we are at liberty to consider all grounds upon which the application rested, and in doing so this court will take account of both the evidence offered at the trial and the newly discovered evidence.
An examination of the grounds of the application for the order appealed from will at once develop the fact that the trial court, in disposing of the problem presented upon the application, was not governed by fixed rules of law, and in the nature of the case could not be governed by any inflexible rule of law. When motions of this nature are presented to a court, they are classified as motions addressed to the discretion of the court. In considering the evidence adduced or that newly discovered, no fixed rules of law exist which could be decisive of the result of the investigation. Under such circumstances a margin of discretion is vested in trial courts, which-permits them, with a view
It is also true that ordinarily a new trial will not be granted where the1 newly discovered evidence is merely impeaching in its character. But if the newly discovered evidence 'is of such character that the trial court is convinced that it would be unjust to permit the former verdict to stand, and that the newly discovered evidence is of such probative force and importance as to render a different result probable on a retrial, the fact that it has a tendency or effect to contradict or impeach witnesses who testified on the trial should not prevent its full consideration on the motion, or-the granting of a new trial to allow its introduction.
In 29 Cyc. 918, it is said: “Ordinarily, a new trial will not be granted for newly discovered evidence to impeach a witness. Thus, evidence to show that a witness had made statements inconsistent with his testimony, or to contradict him on immaterial or collateral matters, is seldom ground for a new trial. But evidence of contradictory statements made by a witness on whose testimony a doubtful verdict was founded has sometimes been held sufficient cause for setting aside the verdict: Newly discovered evidence to successfully contradict a witness upon a material matter may be cause for allowing a new trial, and it is no objection to such allowance that the evidence may incidentally impeach a witness.”
In Spelling on New Trial and Appellate Practice, § 227, this proposition is discussed in the following language: “If the newly discovered evidence would establish a material fact of sufficient probative importance to render a different result probable on a retrial, the fact that it has the tendency or - effect to contradict or impeach witnesses who have testified on the trial should not prevent its full consideration on the motion, or the granting of a new trial to allow its introduction. The evidence should not on the motion be denied consideration under such conditions, any more than where evidence of equal importance is objected to as cumulative. The decisions involving impeaching, offered as newly discovered evidence, present about' the
The statute prescribes the requisites for a motion based on this ground as follows: (1) The evidence must be newly discovered; (2) It must be material; (3) It must be such that the moving party could not with reasonable diligence have discovered and produced the same at the trial of the action. In order to be entitled to a new trial on this ground, the moving party must present to the trial court a showing sufficient to satisfy that court that the evidence has the three qualifications prescribed by the statute. But’whether or not this is satisfactorily or sufficiently shown is primarily a question to be determined by, and resting in the sound judicial discretion of, the trial court, and subject to review by the appellate court only in cases where there has been a manifest abuse of such discretion.
The evidence must be newly discovered. In discussing this proposition it is said in Spelling on New Trial and Appellate Practice, § 207: “The additional evidence, to afford opportunity for the introduction of which a new trial is sought, must be newly discovered, by which expression is meant that it must have been discovered since the trial. If discovered before, or at the trial, and no continuance of the trial was applied for, an answer to the motion that no diligence is shown will be sufficient to defeat it, no matter what else may be shown. And since each party, and especially their counsel, are presumed to be familiar with the issues, and to know what proofs will be required to sustain his own allegations, or to meet and overthrow such as may be adduced in support of those against him, it is not enough to present a showing that he did not know, or did not discover, until since the trial the materiality of the evidence. It is the evidence itself, and not merely its materiality, which must appear to have been newly discovered. But it would be very difficult to state any rule or principle ap
The evidence must be material. This necessarily includes that the evidence must be competent and .admissible. Spelling, New Trial & App. Pr. § 224. In determining the materiality and sufficiency of the evidence, it is frequently suggested that such evidence must be of such character that it will probably change the result upon a retrial. The reason for this is obvious. A new trial should not be granted as a mere empty ceremony. Hence, necessarily a trial court before granting a new trial should be satisfied that the former verdict was unjust, and that the newly discovered evidence, when weighed with the evidence received at the trial, will probably result in a different verdict upon the retrial. 14 Enc. PI. & Pr. 192.
“The probability of a different result -upon a retrial, often suggested as a test of the sufficiency in point of materiality and importance of alleged new evidence to warrant a new trial, is merely a guide for the courts in arriving at a conclusion as to whether, with the addition of the new evidence, the result ought to be different. A very slight addition of material competent and. relevant testimony, or even the same evidence without addition, might produce a different result with a different, or even with the same, jury, upon a retrial. But the dirty of deciding the motion rests primarily with the trial court, and the question whether a different result is probable is necessarily included in its decision. . The general rule on the subject, the same being unquestionably correct as an abstract legal proposition, may be briefly stated thus: A new trial, where the motion is based upon newly discovered evidence, may be properly refused, if such evidence, being admitted, would not change the result. The same principle has been sometimes expressed in different language, but the meaning is usually that above conveyed. The foregoing expression is equivalent to saying that the motion should not be granted unless the court can see from the showing made that a different verdict will probably result from a
“As in all cases where the matter rests almost absolutely within the discretion of individual men, no specific rule of any 'value, subordinate to and definitive of the leading rule,' and applicable generally, can be laid down. But the following attempt to state a more specific rule is at least worth considering: Where the newly discovered evidence is not conclusive against the opposing party, and is reconcilable with either plaintiff’s or defendant’s theory of the case, and the verdict already returned would be. abundantly supported by the evidence, with the proposed evidence added, it is proper to overrule the motion; otherwise, to grant it.” Spelling, New Trial & App. Pr. § 221.
But in determining the sufficiency and materiality of the new evidence the court must weigh it with the evidence received .at the trial. 14 Enc. PI. & Pr. 192.
“In deciding upon the probability of a change in the result by adding newly discovered evidence, having ascertained that it is such as entitles it to consideration, the court will, if necessary, examine and consider the record on the trial. Accordingly, the court was held fully warranted in denying the motion in view of the testimony of eye-witnesses, to which the affidavit of the new witness merely opposed by testimony of a threat of the deceased against the defendant, convicted of manslaughter.
“The court will not only examine the general features of the case, but will examine the testimony of particular witnesses, in order to determine what consideration should be given to the new evidence.” Spelling, New Trial & App. Pr. § 222.
It is also incumbent upon the movant to show diligence. Whether or not a sufficient showing of diligence has been made is a question of fact to be determined in the first instance by the trial court, and its decision is binding on the appellate court, and will not be reviewed except in case of an abuse of discretion on the part of the trial court.
But diligence is a relative term, incapable of exact definition, and depends essentially upon the particular circumstances of each case. Heintz v. Cooper, 104 Cal. 668, 38 Pac. 511. And in determining the question of whether or not the moving party used due diligence, all the circumstances, including the situation of the parties and the witness who will give the newly discovered evidence, will be considered.. Sturdy v. St. Charles Land & Cattle Co. 33 Mo. App. 44. And while-it is true that the general tendency of the trial courts, with the full sanction of the appellate courts, seems to be toward strictness rather-than laxity in the showing of diligence on the motion based on the-ground of newly discovered evidence, still,- “the courts have held the-strict rule as to the showing of diligence inapplicable in certain cases, thus constituting exceptions to the rule, while in other instances, without expressly suspending its operation, have greatly relaxed its requirements to meet the peculiar hardships of such cases, and prevent what they considered a failure of justice.” Spelling, New Trial & App. Pr. § 219. See also Malmstad v. McHenry Teleph. Co. 29 N. D. 21, 149 N. W. 690.
The function of the courts is to dispense justice. And the fundamental question presented on a motion for- new trial based on the ground of newly discovered evidence is whether or not substantial justice was done at the former trial. It is the-duty of the parties, to litigation to exercise due diligence in preparing and presenting: their causes, and to produce to the court the- best evidence within their power on the questions involved. The presumption is that the verdict
' This action was upon a promissory note. It is conceded by both parties that the only question submitted to the jury was whether or not the note was genuine or a forgery. . It is also, conceded that if the note was executed at all, it must have been at the time and place referred to in the affidavit of St. Clair. It, also, seems to be conceded that at the time and place the plaintiff and defendant entered into a certain contract of exchange, and that the only persons present at that time were the plaintiff and defendant and the witness St. Clair. It seems to be the contention of the plaintiff that at that time and place, the defendant signed not only the contract, but also the note involved in this suit; while the contention of the defendant seems to be that he signed the contract, but that he did not sign the note, and that his purported signature thereto is a forgery. As already stated in the former opinion, no statement of case has been prepared, and the testimony of the plaintiff and defendant on this question is not before us. We have no means of knowing what this testimony was, or to what extent the testimony of St. Clair corroborated or contradicted one or the other of these parties; or to what extent the newly discovered evidence will affect the testimony of these parties. This testimony is not before us.
The trial judge, however, not only heard this testimony, but saw the parties themselves as it was given. He also heard the testimony of the other witnesses, and the arguments of counsel. He was familiar with all the details of the trial, and, possessed of this peculiar knowledge, he said in effect that under all the circumstances in this case, the evidence was newly discovered; that the defendant could not with reasonable diligence have discovered and produced the same at the trial; and that when considered and weighed with the former testimony, it was material to the defendant to the degree that upon a retrial of the action a different result was probable. The presumption
In this case the appellant had the burden of showing that, under all the facts and circumstances in this case, the trial court manifestly abused its discretion in granting a new trial. We are all agreed that upon the record presented to us an abuse of discretion has not been shown. The discretion vested in the trial court should be exercised in the interests of justice. There is nothing to indicate that it was not so exercised in this case. The former decision will stand; a rehearing is denied.