Boggess v. Read, 50 N.W. 43

Granger, J.

1. Newly trial: discovered evidence: construction of term “cumulative.” I. Tbe only question presented by tbe plaintiff’s appeal is as to tbe correctness of tbe court’s ruling ‍​​‌​‌‌‌‌‌​‌​‌​​​‌​‌​​​​‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​‌​​​​‌​‍in granting a new trial. Three separate assignments are urged agаinst the action of tbe court: First. That the newly discovered evidence is cumulative; second, tbat tbe defendant fails to show diligence in securing tbe evidence for tbe trial; and, third, tbat a new trial should not be granted, as ‍​​‌​‌‌‌‌‌​‌​‌​​​‌​‌​​​​‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​‌​​​​‌​‍a matter of law, for newly discovered *550evidence, where the defense is a plеa of justification. The assignments will be noticed separately.

’There is some danger in a court of last resort attеmpting to definitely define the term “cumulative/7 as applied to evidence. The rule is recognized that a new trial will nоt be granted for newly discovered evidence when it is merely cumulative. There would certainly be great danger in giving to thе term its most comprehensive sense, for the law provides for a new trial because of newly discovered evidеnce, and a new trial is another examination of the same issues of fact. Code, sec. 2837. In practice, the first trial is always upon evidence directed ‍​​‌​‌‌‌‌‌​‌​‌​​​‌​‌​​​​‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​‌​​​​‌​‍to the issues. In a literal sense, that is cumulative that adds to what already is. Now, if а new trial is to be refused where it would be cumulative of evidence that tends to establish the ultimate facts or issues in the case, then the statute as to new trials for newly discovered evidence would be practically inoperativе, because the application would always be because of cumulative evidence. Such a construction, so far as we know, has never been given in the application of the law as to cumulative evidence. It is urged upon us, on the authority of First National Bank v. Charter Oak Ins. Co., 40 Iowa, 572, that, whenever the evidence is additional, then it is cumulative; but we think‘the case is authority only for a rule that, when the evidence is additional to other evidence on the same point, as distinguished from an ultimate fаct, it is cumulative in the statutory sense. Now, as a defense in this case, the defendant attempted to show lewdness or adulterous conduct. On the trial already had, there was evidence of particular facts tending to show lewdness. Additionаl evidence as to such particular facts would be cumulative. But the showing of newly discovered evidence is that witnesses will testify to other facts from which the ultimate fact of lewdness may be found. The defendant purposes to prove acts not before *551attempted to be established. Such evidence we do not regard as ‍​​‌​‌‌‌‌‌​‌​‌​​​‌​‌​​​​‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​‌​​​​‌​‍cumulative, within the rule for denying a party a new trial. Able v. Frazier, 43 Iowa, 176; Parker v. Hardy, 24 Pick. 246; Stineman v. Beath, 36 Iowa, 78; Alger v. Merritt, 16 Iowa, 121.

2. -:-: showing of diligence. II. As to the assignment that the record does not show that due diligence was exercised to secure the evidence at the first trial, we think no error appears. The showing, in brief, is that the defendant before the triаl made inquiry of a great many persons that he supposed knew, or would be likely to know, of the relations of said Boggеss with women, or touching any of the matters in issue in said case, and in each and every instance pursued each and every line or hint of evidence with diligence, to the full extent of his ability, etc. The particular criticism upon the showing, is that it dоes not show of whom inquiries were made, so as to leave the question of diligence one for the court, and not thе affiant, and Smith v. Wagaman, 58 Iowa, 11, is cited. The cases are clearly distinguishable. In that case the showing was of the effort made to learn the name of particular persons who heard a certain conversation, and certain other persоns were known to be present, an inquiry of whom would likely disclose the desired names, but the affidavit was only that inquiry was made to аscertain the names of the persons whom affiant remembered were present. Prom the record in that case the court could say: ‍​​‌​‌‌‌‌‌​‌​‌​​​‌​‌​​​​‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​‌​​​​‌​‍“There were certain persons of whom due diligence required that inquiry should have been madе. The affidavit may be true, and the inquiries have been made of persons known or not supposed to have knowledgе of the persons or their names.” Prom such an affidavit the district court could well say it was not satisfied, or did not believe, thаt diligence had been exercised, as it, in effect, did, and this court affirmed its action. The affidavit in this *552case is materially different, and one from which the district court could believe and find that due diligence had been exercised, and with such a finding wе cannot interfere. The fact that the affidavit states conclusions, rather than particular facts from which the сonclusions might be found, goes rather to the value of the affidavit as evidence than to its legality as such. The query is presented if it should not appear that counsel for the defendant did not know of this evidence. To hold that such a showing must bе made would be equivalent to assuming such knowledge on the part of counsel, and we think that such a rule does not and should not prevail. Nothing in the record will justify our interference with the action of the court on the question of diligence.

3. _.__. action for slander: plea of justification. III. Is it thе law that, under a plea of justification in such a case, a new trial should not be granted? There is a faint showing of authority to support the rule, but, in view of our its value need not be discussed. Code, section 2837, treats of new trials, and provides “that * * * the verdict * * * shall be vacated, and a new trial granted, on the application of the party aggrieved, for the following causes, affecting materially the substantial rights of such party: * * * First. Newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the triаl.” No class of cases in which there is a verdict is excepted from the operation of the statute, and it seems to us conclusive of the question.

The defendant’s appeal appears to be only to maintain the order for a new trial in case of a reversal on the plaintiff’s appeal. It is not, therefore, necessary to consider questions therein presented. Affirmed,

Case Details

Case Name: Boggess v. Read

Court Name: Supreme Court of Iowa

Date Published: Oct 20, 1891

Citations: 50 N.W. 43; 83 Iowa 548

Court Abbreviation: Iowa