Fisk v. Fehrs

| N.D. | Nov 22, 1915

Bruce, J".

(after stating the facts as above). The first answer that-is made by respondent to appellant’s motion for a new trial on the ground of newly discovered evidence, and claim of an abuse of discretion on the part of the trial judge in refusing the same, is that appellant is estopped by reason of the fact that he paid the judgment for costs and had the same satisfied of record. There is no doubt authority for counsel’s contention, and it is not without merit. The better and more generally accepted rule, however, and the one which we prefer to adopt, is “that even a voluntary compliance with the judgment or decree of the court by payment or performance is no bar to an appeal or writ, of error for its reversal, particularly where repayment or restitution may be enforced, or the effect of compliance may be otherwise undone in case of a reversal,” and that “the mere' payment of costs by an unsuccessful litigant, even though voluntary, is not such an acquiescence in or recognition of a judgment, order, or decree as will constitute a waiver of the right to appeal .. . . unless [perhaps in some instances where such] . . . payment is voluntarily made in compliance with a condition imposed by the court on granting relief asked by the appellant.” See 3 C. J. 675, 679, and cases cited.

T\re are not prepared, however, to hold that the learned trial judge abused his discretion in the case at bar. The evidence was largely cumulative, and the introducing the new element or claim that the vendor was persuaded by the purchaser to leave the country went merely to prove or disprove the main question of ownership. So, too, and even if this element were new, no great advantage could come to the plaintiff and appellant by an attempted proof thereof, as the affidavits which are filed by the respondent, as well as a letter which was. written by the alleged vendor himself, clearly prove that he was a fugitive from justice and had good reason for his departure. The affidavit of the son (the vendor) on which the motion for a new trial was based, also, it is true,denies the sale, but this is merely subsidiary to the question of title, and if the appellant did not own the goods it is immaterial how the possession by the defendants was acquired. The main objection to the motion, however, is that there is no satisfactory showing of diligence or of good faith. The son, the vendor, sold to or left the property with the respondents in the summer of 1910, and no inquiry seems to have been made by the appellant in relation thereto until the spring of 1912, nor was the suit brought until July, 1912. During all of this time the plaintiff and appellant knew that his son was a wanderer and had left the state of South Dakota. Before the starting of the lawsuit, his wife received a letter from her son from some point in Michigan. She swe'rs that she received no letter from Grand Biver, South Dakota, since 1910, and yet the only inquiries that appear to have been made were in South Dakota, and “by addressing letters to the said Irl Y. Fisk at Grand Biver, South Dakota, and Hettinger, North Dakota, but that the same were returned.” On the trial, too, whenever questions were asked by defendants’ counsel as to the whereabouts of the-son, strenuous objection was made thereto by the appellant, and the-objections were sustained by the court.

The genera] rule appears to be that the granting of a new trial on the ground of newly discovered evidence is a matter which rests largely within tfye discretion of the trial court, and that in no case will such discretion be interfered with on appeal and a refusal to grant such new trial be looked upon as an abuse of discretion when the affidavits do not. show “such new facts as will probably lead to a different result on another trial.” Braithwaite v. Aiken, 2 N.D. 57" court="N.D." date_filed="1891-06-22" href="https://app.midpage.ai/document/braithwaite-v-aiken-6734316?utm_source=webapp" opinion_id="6734316">2 N. D. 57, 49 N. W. 419; Hayne, New Tr. & App. § 91; McGregor v. Great Northern R. Co. 31 N.D. 471" court="N.D." date_filed="1915-09-16" href="https://app.midpage.ai/document/mcgregor-v-great-northern-railway-co-6737463?utm_source=webapp" opinion_id="6737463">31 N. D. 471, 154 N. W. 261; Aylmer v. Adams, 30 N.D. 514" court="N.D." date_filed="1915-04-15" href="https://app.midpage.ai/document/aylmer-v-adams-6737382?utm_source=webapp" opinion_id="6737382">30 N. D. 514, 153 N. W. 419; State v. Cray, 31 N. D. 67, 153 N. W. 425. Here no such probability appears. The son’s (Irl V. Fisk’s) affidavit as to the ownership of the mules is directly contradicted by his letter to his wife soon after he left, and dated December 17, 1910, and in which he says: “I offered' the mules to Frank Bulls for $250, and he had to ship the big box and the other stuff, and when you folks want to sell them and the wagon., harness, and tent tarpaulin for that money on a year’s time write Axel Larsen, Clinton, N. D.” It is also inconceivable that if the plaintiff' was the owner of the property he would have made no claim for it, nor, as far as the record shows, paid any attention to it, or attempted to put' anyone in charge of it, until the spring of 1912, when he himself admits that as early as the winter of 1910 he knew that his son had left; tbe country, and that be bad from that time some information, at least, as to where tbe property was, “partly from letters written'by bis son to bis wife” and “partly from other sources.”

This is not a case where the person seeking tbe new trial was dragged into court by bis opponent without due opportunity for tbe preparation of bis defense, but where be himself started tbe action, after having bad nearly two years in which to obtain bis information and to find bis witnesses.

Tbe judgment and order appealed from are affirmed.

Fisk, Cb. J., being disqualified, did not participate, and W. L. Nuessle, District Judge, sat in bis stead.