153 Iowa 511 | Iowa | 1911
On the trial of the action in 1907, judgment was rendered for the plaintiff for the selling price of a car load of stock hogs delivered to defendant in 1902. The defense interposed on the trial was breach of warranty that, first, the hogs' were not afflicted with the disease known as hog cholera; and, second, that said hogs had not been unloaded from the time they were shipped from South Dakota until they were unloaded at Ida Grove; the result of the breach of warranty being that the hogs were of no value on account of their diseased condition when delivered.
From the averments of the petition for new trial and the evidence offered in support thereof, it appeared that soon after the rendition of judgment in this case, in another case brought by this plaintiff against other defendants to recover the purchase price of other hogs delivered
The question still remains, however, whether these declarations and admissions of plaintiff made in his subsequent testimony on another trial constituted newly discovered evidence, in view of the fact that such declarations and admissions had not been made when the trial in the present case took place. Can the unsuccessful party have a new trial on the ground of newly discovered evidence, where such evidence was not in existence when the trial was had? We find little light on this subject in the authorities. So far as we have been able to discover, the pertinent cases support the proposition that acts and declarations, subsequent to the trial, made by the successful party and inconsistent with his right to recover, may be shown as a ground for a new trial asked for within the period within which . an application for a new trial is allowed to be made. Stauffer v. Martin, 43 Ind. App. 675 (88 N. E. 363) ; Wall v. Trainor, 16 Nev. 131; Welch v. Nashoe, 8 Tex. 189. The cases of Lasseter v. Simpson, 78 Ga. 61 (3 S. E. 243), and Keeley v. Great Northern R. Co., 139 Wis. 448 (121 N. W. 167), relate to statements of witnesses made after the trial in which they testified, and are therefore plainly not in point; for statements out of court made by a witness inconsistent with his testimony can only be shown for impeaching purposes, and new trials are never granted on the ground of newly discovered evidence which is merely impeaching in its character. The case of Bank v. Pratt, 31 Me. 501, is not in point; for, though the offer was to introduce the testimony of a witness who could not have testified on the trial, by reason of the disqualification of interest which had been subsequently removed,_ the court held the offer insufficient, because the disqualification might have been removed prior to the trial, in-the exercise of reasonable diligence, and the party at the trial was aware of its existence. The cases of Sullivan v. O’Conner, 77 Ind.
We are well aware of the reasonable objection to the prolonging of litigation by the offer to introduce newly discovered evidence, but in the interest of justice we think that in a proper case, and within the limited period of time fixed by the statute, the unsuccessful party ought to be allowed to secure a new trial on a showing that the acts and conduct of the successful party, even after the trial, have been absolutely inconsistent with the truthfulness of his testimony on the trial. The extension of the rule as to admissibility of evidence, so as to include as competent witnesses the parties to - the litigation, makes it important that every practicable check be afforded to the procuring of an unjust result by their false testimony. The trial court erred, therefore, in refusing to sustain the petition for new trial, supported by a showing that plaintiff subsequently testified on another trial in a manner entirely inconsistent with the truthfulness of his testimony on the trial of this case; it appearing that his testimony in this case may well have been the controlling consideration in the minds of the jurors in reaching their verdict.
The ruling of tbe trial court, refusing a new trial on . defendant’s petition, is therefore reversed.
I agree to tbe conclusion, but not with tbe third division of tbe opinion. Upon tbe proposition there involved, I am disposed to disagree with tbe conclusion of tbe majority.