18 Ind. 5 | Ind. | 1862
More than two years after the rendition of a judgment, in said Court, against said Hall, he filed his complaint for a review of the same, alleging two grounds: 1. Error of law appearing in the record, and, second, newly discovered evidence. In the former suit, judgment had been suffered by default. The suit was upon a promissory note, and the defence now sought to be set up, and evidence offered, is to establish that said note was a forgery, or executed through mistake. The names of the witnesses by whom these facts are to be proved, are not given, nor the substance of the testimony of each. It is, perhaps, sufficiently shown, that due diligence had been used by the said Hall to produce evidence at the former hearing in support of the defence now proposed to be offered, and of which he was then apprised. There is nothing alleged showing that the fact that he was entitled to such defence was not then known to him: only that he could not then, but can now, produce evidence to sustain it. A demurrer was sustained to the complaint.
As to the second paragraph or cause for a review, our statutes are somewhat peculiar. The article numbered 28, and entitled, “Proceedings to review Judgments,” 2 R. S. 165, provides, in the first section, as to the parties by whom, and the time within, and Court before, and form in which an application shall be made. The next section is, that:
“ The complaint may be filed for any error of law appearing in the proceedings and judgment, or for material new matter, discovered since the rendition thereof or for both causes, without leave of Court.”
The next section provides, that for this second cause the complaint shall be verified, and show that the new matter could not be discovered by reasonable diligence before judgment, &c. It is then enacted, that “the defendant shall have notice,” and issues of law and fact shall be formed as in other cases; and upon the hearing, the Court may reverse or affirm the judgment, in whole .or in part; or modify the same.
This statute, considered alone, might make it doubtful whether or not the phrase, “ material new matter,” should be so construed as to admit an application based upon newly discovered evidence, to sustain a defence set up, or known to exist, at the former trial. If this should be the construction, it would be, in effect, merely an extension, by statute, of the time in which, according to the rules formerly governing the
The strongest reasons that present themselves to our minds, Justifying a conclusion that would permit a review for newly discovered evidence, are, that the statute requires the application to be made to the same Court in which the judgment was rendered, and permits it to be so made in three years. This would be an extension of the time to search for and obtain such testimony for two years beyond that granted by the other statute. But there has to be an end of the matter some time, and taking these statutes together, we are of the opinion, it was the intention of the Legislature to close up applications for new trials, on account of newly discovered evidence applicable to the claims pending, or known defences, at the close of the year; but that upon the discovery by either party of material'new matter, affecting the claim or defence, the same, under certain restrictions, might be produced within three years, and tried.
Under this view of the question, the demurrer was properly sustained to the second paragraph of the complaint; and dispenses with the necessity of our examining the requisites of a complaint for review for material new matter, and how far, if at all, it should conform to the rules that formerly prevailed in regard to bills in chancery upon kindred or similar questions.
The judgment is affirmed, with costs.