2 S.D. 410 | S.D. | 1892
This cause was brought by appeal to this court at the October term, 1890, at which term a decision was rendered affirming the judgment of the court below. After-wards a rehearing was granted. The reasons alleged why the former decision should be reversed are:
First. That before the trial of the cause in the court below there were two motions made for a continuance, and both overruled, and that in the consideration of the case by this court one of the motions for continuance was overlooked. The motion considered was based upon the ground of absent witnesses but it is claimed by appellant that just before the case was called for trial Winsor & Kittredge, the leading coupsel in the case, retired from it, and Judge Palmer, another attorney, was suddenly called into the case, and he at once made an oral motion for a continuance, based upon the ground of surprise at the sudden retirement of Winsor & Kittredge. ‘‘That motion,” says the appellant, ‘ ‘was urged, but was denied by the court. These facts do not appear in the bill of exceptions, but are
Second. Another of the grounds urged at this rehearing for a reversal of the case is that of newly discovered evidence. This was one of the assignments of error at the former hearing, and was fully considered at that time. But in addition to the argument that was then urged the appellant says: “The defendant could not forteil what the consideration of the particular sale would be claimed to be, nor how it was paid, whether in cash or notes or upon credit. He certainly would not expect from what he could learn of plaintiff’s circumstances that he would claim to have paid it in money. No diligence could ascertain these facts in advance. They were first disclosed at the trial. These facts possibly might have been ascertained by diligence, but their applicability could not be learned until trial. The same may be said in relation to the bill of sale, the execution and date of which were first discovered at the trial.” This is certainly a novel position. First acknowledging that material facts and testimony relating to the main issue of a case on trial may have been ascertained by diligence, and that no steps were taken to secure them, and then afterwards saying to the court that the applicability of the evidence could not be learned until the trial was in progress, because it is just discovered that the evidence is needed to make out the defendant’s side of the case. If such a position was tenable, litigation would have no end. Losing parties in nearly all cases can find something new that may be beneficial to them, after a trial is had; but this can be no reason why a new trial shall be granted. The law requires diligence before trial. Parties must be ready