60 Neb. 580 | Neb. | 1900
This proceeding in error has for its object the reversal of a judgment denying Maria Heilman’s application for a new trial based upon an alleged discovery of material evidence after the adjournment of the term at which the case of David Adler & Sons Clothing Co. v. Maria Hellman was decided. The final decree in the case mentioned was
The policy of the legislature with respect to the re-examination of the issues of fact once tried and determined is clearly indicated in article 6 of the Civil Code. A party claiming a new trial must show diligence; he must move promptly. Any needless delay, any inertness, on his part, which hinders the court in bringing the litigation to a speedy conclusion results in a forfeiture of the statutory right. Section 316 is as follows: “The application for a new trial must be made at the term the verdict, report or decision is rendered, and, except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.” Section 318 provides: “Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered or made, the application may be made by petition filed as in other cases; * * * but no such petition shall be filed more than one year after the final judgment was rendered.” It is quite clear from the sections quoted that, if the new evidence
The petition for a new trial, if presented in apt time, may be entertained by the district court although the cause be pending in this court for review. Such is the obvious meaning of the statute, and such is the construction given like statutes in other jurisdictions. Cook v. Smith, 58 la., 607; Gibson v. Manly, 15 Ill., 140. A party desiring to obtain a new trial under the provisions of section 318 of the Code has, therefore, the right in every case to make his application within one year from the date of the judgment in the district court, and that court has authority to entertain his petition and grant the relief demanded, although the cause may be pending for review in this court. The legislature did not intend to say that the remedy which it provided should be available under
The judgment is
Affirmed.