220 P. 110 | Idaho | 1923
— This action was brought by appellants Caravelis against their nephew, respondent Tom Cacavas, for the purpose of obtaining a decree declaring a warranty deed for 160 acres of land near Pocatello, executed by them to him, to be a mortgage. From a judgment for respondent and an order denying the motion for a new trial this appeal is taken. The principal assignments of error and the only ones which we will specifically mention are (1) that the evidence is insufficient to support the findings and judgment of the court to the effect that the deed was intended to be an absolute conveyance and not a mortgage, (2) error in sustaining a motion to strike part of the witness Valentine’s testimony, (3) error in denying appellants’ motion to reopen the case for the introduction of newly discovered evidence of M. E. Hughes and Gust Babalis, and (4) error in denying appellants’ motion for a new trial on the ground of newly discovered evidence.
The witness Valentine was asked to state a conversation which occurred between himself and respondent in regard to the transaction. There seemed to be some doubt in the mind of the trial judge as to whether the witness was giving the substance of the conversation or merely his own impression. Therefore the judge examined the witness himself. At the conclusion of this examination he struck all of the testimony elicited by his own questions on the ground that it proved the witness’ own deductions rather than any specific conversation. However, practically every answer that the witness gave to the judge’s questions is substantially covered by answers given to the attorneys upon direct and cross-examination, and it is perfectly clear that only the answers given to the judge’s questions were stricken. We conclude that the action of the court in striking the answers elicited by the judge cannot be held to be prejudicial or reversible error.
On the trial at least four witnesses testified that respondent stated to them the deed was not intended as an absolute conveyance but as a mortgage. In support of a motion for a new trial appellants produced the affidavits of M. E. Hughes and Gust Babalis who both swore that respondent made similar statements to them, and that they did not inform appellants of this before the trial. Respondent insists that this evidence, even if newly discovered, could not be ground for a new trial because it is purely cumulative. Appellants, on the other hand, contend that the newly discovered evidence does not pertain to some collateral or incidental matter, but goes to the very gist of the case. They also contend that it is of a different grade or character in that the evidence produced upon the trial was that of the appellants, who are interested parties, and that of respondent’s two brothers, who were shown to be hostile to him, while the newly discovered evidence is that of disinterested, impartial witnesses not shown to be hostile to respondent. The granting of a new trial upon the ground of newly discovered evidence is largely a matter of discretion, in the exercise of which this court will not disturb the order of the trial court, except in case of abuse clearly disclosed by the record. (State v. Fleming, 17 Ida. 471, at 505, 106 Pac. 305; Seamons v. Davis, 34 Ida. 393, 201 Pac. 716; Hall v. Jensen, 14 Ida. 165, 93 Pac. 962.) A new trial should not be granted upon that ground unless it appears reason
C. S., sec. 6888, subdiv. 4, provides that a new trial may be granted upon the ground of “newly discovered evidence material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial.” (Hall v. Jensen, supra; State v. Lumpkin, supra; State v. Fleming, supra; McAllister v. Bardsley, supra.) As counter-affidavits on the motion for a new trial, respondent submitted those of C. W. Pomeroy and D. D. Mote, two of his attorneys, who swore that on a certain occasion, in the courthouse, in the presence of themselves and others, appellant Will Caravelis stated that the other appellant, his wife, had informed him that the affiant M. E. Hughes had told her, either in the latter part o£ 1915 or early part of 1916, that the said Hughes had had a conversation with respondent about that time in regard to the nature of the transaction, as a result of which the property was conveyed. Appellants submitted in rebuttal the affidavits of William Edens, one of their attorneys, and of appellant Will Caravelis, to the effect that, at the time referred to by affiants Pomeroy and Mote, said appellant stated that his wife said to him after the trial that she
There is no proof that the appellants, or either of them, knew of the witness Babalis before the trial. His affidavit is directly contradicted by respondent’s. Does it appear probable that the additional testimony of this one witness would cause a different result upon a retrial? This question, like all others arising upon a motion for a new trial, is for decision by the trial court in the first instance. We are not convinced that that court abused its discretion by deciding this question in the negative.
It does not clearly appear from the record that the trial court abused its discretion in denying the motion for a new trial. The judgment is affirmed, with costs to respondent.