199 A. 428 | Conn. | 1938
On April 2d 1936, the plaintiff recovered a judgment against the defendant and no appeal was taken. On August 22d 1936, the defendant filed a petition for a new trial on the ground of newly discovered evidence and because the transcript was defective. Affidavits containing the newly discovered evidence and the claimed corrections of the transcript accompanied the petition, as did the transcript of evidence on the first trial. At the hearing these were supplemented by a very limited amount of oral testimony. *318 Judgment was entered denying the petition and this appeal is from that judgment.
The petition for a new trial was not in proper form, since it contained no citation to the plaintiff. While such a petition is not an independent proceeding, one brought after final judgment should be accompanied with a citation to the opposing party to appear and be heard. Gannon v. State,
Continuing this informal procedure, the stipulation referred to provided that the court might rule on the petition "as if plaintiff had demurred to a petition setting forth all the testimony contained in said affidavits." This the court proceeded to do. It could not sustain a demurrer which had not been filed but, correctly assuming that the purpose of the stipulation was to enable it to render final judgment, it found the petition insufficient and it was denied.
The petition contained no allegation of due diligence. Due diligence is a necessary condition to success in prosecuting a petition for a new trial. Meriden v. Rogers,
A comparison of the evidence at the trial with the affidavits discloses that even if the defendant had met no objections of this character, she did not make out a case. The dispute concerned the location of the east *319 and west boundary line between the premises owned by the respective parties. The plaintiff claimed that the line followed an old fence, the existence of which was well established, and which bulged away from the plaintiff's house. The defendant claimed that the line was substantially straight. The greatest difference between these lines at any point was two feet and the greatest variation from a straight line a matter of inches. The exhibits indicate that the strip of land in dispute can have no substantial value to the defendant. If the line had been established in accordance with her claim, it would be near enough to the plaintiff's house to cause him some inconvenience. The evidence was voluminous and many exhibits were offered. The new evidence now proffered by the defendant is purely cumulative. Some of it was offered to correct the record as printed. It is doubtful whether this is of any importance in a trial to the court where the evidence has been certified. Be that as it may, none of the corrections sought are such as, if made, would probably affect the result.
"Newly-discovered evidence which is merely cumulative . . . will not suffice ordinarily to grant a new trial, and never unless it appears reasonably certain that injustice has been done in the judgment rendered, and that the result of a new trial will probably be different." Apter v. Jordan,
There is no error.
In this opinion the other judges concurred.
