110 Ind. 127 | Ind. | 1887
The appellees obtained a new trial upon a complaint filed after the term. The appellant unsuccessfully demurred to the complaint.
One of the grounds upon which the complaint is assailed is, that the newly discovered evidence is cumulative, but we-think this ground not tenable. The newly discovered evidence was’ of an independent and distinct fact, the existence of an account book which had been concealed from the plaintiff, and is not, therefore, within the rule declaring that a new trial will not be granted where the newly discovered evidence is merely cumulative. Hines v. Driver, 100 Ind. 315; Rains v. Ballow, 54 Ind. 79.
It is true that the newly discovered evidence tended to contradict and impeach the appellant, but it did much more than this, for it tended to establish a material fact, namely, the existence of the appellant’s account book in which there were entries directly sustaining the appellees’ theory. Where evidence proves a distinct and material fact, a new trial can not be denied because the evidence may have the additional effect of impeaching the testimony of the party against whom it is offered.
In defending the complaint against the objection that diligence was not shown, counsel refer us to the exhibit containing the evidence given on the former trial, but this reference will not avail the appellees. The evidence may be made an exhibit, but the exhibit performs no other office than that of bringing the evidence into the record; it does not supply any averments essential to the validity of the complaint, for these must be made in the body of the pleading. In Hines
The averments of the complaint upon this subject are these: “ That it became and was a material question upon the trial of said cause whether said $1,179 had been paid by the plaintiffs to the defendant; that the only evidence introduced by the plaintiffs, as shown by the bill of particulars filed herewith, marked exhibit ‘A,’ which contains all the evidence introduced upon said trial, was the evidence of Claude Crowder, who testified that he had paid the sum of $1,179 to and for the benefit and use of defendant for the plaintiffs, at the instance and request of defendant; that he had kept the charges in a small book until August, 1882, when he added them up and charged the sum total, $1,179, upon an irregular journal kept by him as book-keeper for the plaintiffs; that this was well known by the defendant; that he saw the small book; that defendant kept a small book himself containing the charges against himself, and that the witness and the defendant at several different times compared defendant’s accounts during said time, and found the same correct, and that the book had been lost, and he was unable to give the various charges and payments composing the sum of $1,179.”
It is also alleged in the body of the complaint, that, when
We concur with counsel that it is necessary for a party asking a new trial to state the facts constituting the diligence, and that he must show the place, time and circumstances-under which the inquiries were made. Toney v. Toney, 73 Ind. 34; Wall v. State, ex rel., 80 Ind. 146; McCauley v. Murdock, 97 Ind. 229; Hines v. Driver, supra. We think, however, that-this complaint does show that inquiries were made of the-proper party. Inquiries were certainly made of the appellant when on the witness stand, and, as he was shown to have-had the book, it is difficult to perceive how he can, with any show of reason, complain that proper inquiries were not prosecuted. It was not unreasonable for the appellees to presume that he could give truthful information, and that he would do so when called upon to answer on oath.
It is undoubtedly the law, as appellant contends, that it must be shown that the evidence was not discovered during-the term at which the case was tried. Hines v. Driver, supra, and cases cited. This does appear by express averment in the complaint before us.
Judgment affirmed.