16 Ind. 248 | Ind. | 1861
Harness sued Brown, as the joint maker of a note. Brown answered that he was surety only, and that he was not indebted. Second. That he had notified Harness to sue the principal. Third. Usury. Judgment for the plaintiff. At the first term of the Court afterward, Brown filed a petition for a review of said judgment, averring the above facts, and, in addition, that the only evidence given on the trial was the note sued on; that said defense
The statute under which the proceeding was instituted provides, that “ The complaint may be filed for any error of law appearing in the proceedings and judgment, or for material new matter discovered since the rendition thereof, or for both causes, without leave of Court.” 2 R. S., p. 165.
The question urged upon our attention is, whether the discovery of new evidence to sustain the issues formed, or the discovery of facts other than such as might have been proven under the issues thus made, are properly embraced within this statute.
It is sufficiently shown that the testimony now proposed to be brought forward is new, and additional to any introduced on the former trial as to the issues then made; that a proper degree of diligence had been used in seeking for evidence, before that trial; and that it would, prima faeie, establish a cause of defense not then directly set up, namely, the extension of time, &c.; unless it was subject to the objection that the agreement to forbear was invalid, on the ground of usury. We are inclined to think the agreement to forbear was not binding, and therefore could not have injured the defendant (present plaintiff); but the money paid should have been credited upon the note. It was not. Therefore, without deciding at present, whether a review should, in any case, be granted for newly discovered evidence alone, we are of opinion it should have been granted in this case. This will give the parties an
The judgment is reversed, with costs. Cause remanded, &c.