149 A. 406 | Conn. | 1930
The original action which gave rise to the present proceeding was brought by the present defendant against the city — for injuries upon the public highway wherein the then plaintiff recovered judgment for $2500 damages, and upon appeal that judgment was affirmed by this court. Rogers v. Meriden,
Upon the present appeal the sole question presented to us is whether the trial court erred in sustaining the defendant's demurrer to the complaint, and in rendering judgment for the defendant. This is a question of law as to whether the facts alleged in the complaint and the exhibits made a part of it by reference, if true, entitle this plaintiff to a new trial of the original action on the ground of newly-discovered evidence. General Statutes, § 5850. Applications for new trials are addressed to the sound discretion of the court and its conclusion will not be disturbed unless its discretion has been improperly exercised. The matter of new trials is controlled by well-established rules. Gannon
v. State,
"`To entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.' " Hall v. Tice,
The city alleges in paragraph five of the complaint, that it was "unable" to discover this evidence "before or during said trial, as said plaintiff did not know where the said Rogers was employed," yet paragraph three of the complaint annexes the testimony of Rogers upon that trial and therein he clearly stated where, by whom, for how long, and at what compensation he was employed. These allegations are contradictory and not proper pleading. A demurrer admits such facts only as are properly pleaded. Eliot's Appeal,
Where a plaintiff testified that he had a motor vehicle license, but was not cross-examined upon that point and defendant's counsel made no effort to ascertain the truth of the statement by consulting the office of the motor vehicle commissioner, and after judgment *119
for the plaintiff, defendant secured an injunction against levy of execution and brought action for a new trial on the ground of perjury by the plaintiff, a new trial was denied. In affirming the action of the trial court, MR. JUSTICE KEELER remarked: "We have to observe at the outset that the trial judge has found a lack of diligence as an ultimate fact, which must stand if reasonably supported by the subordinate facts appearing in the record. . . . The fact assumed great importance in the mind of Andrews' counsel directly after judgment in the action. That he did not realize its importance before, is a clear indication of negligent preparation, and an example of wisdom after the event. Due diligence is manifested by foresight, and a want of it is not excused by activity following disaster."Andrews v. Olaff,
It may further be said that in our view of the essential accuracy of the original testimony of Rogers — the presentation of the evidence now offered could not be expected to change the result of that trial. This in itself would justify denial of the petition. Apter v.Jordan,
There is no error.
In this opinion the other judges concurred.