105 Mo. App. 407 | Mo. Ct. App. | 1904
(after stating the facts as above).
Bearing in mind that the case had been originally heard before the magistrate in whose court it had been brought, and that the trial in the circuit court was the second trial of the cause, and occurring long after the first hearing, the setting aside of the verdict- of the jury upon the ground assigned was improper and should not be upheld. Yielding full deserved credit to the affidavits, at best the defendant was convicted of carelessness and laches in not recalling the facts set forth in the affidavits in the lengthy interval elapsing between the two trials and taking advantage of them at the trial in the circuit court: any circumstances tending to evince surprise, stripped and analyzed, exhibit a state of facts establishing negligence, forgetfulness or carelessness to an extreme degree on part of defendant; all the proof referred to in the affidavits was within defendant’s reach and could have been produced by the exercise of any diligence no facts tending to show which are sub
PER CURIAM. — The majority of the court desire to add to what is said in the minority opinion, that in their judgment, the newly discovered evidence almost demonstrates that the respondent has paid the account he is sued on. The account is not a large one and in his memory the payment of it became confused with another payment he had made to Frentrop, Shelton’s clerk or manager. When he heard Frentrop testify concerning the two payments and that the account in suit had been paid to Shelton personally in his lifetime, the respondent was at first surprised, but gradually the ■facts came to him; especially when it was found the draft on the bank verified Frentrop’s statement. It is said the respondent was remiss in not recalling the truth sooner; but a man can not always control the operation