72 Ind. 57 | Ind. | 1880
— This was a proceeding upon a complaint for the review of a judgment.
The complaint averred that John A. Roach and Mahlon F. Roach, on the 26th day of October, 1870, executed their promissory note to one Warren H. Thomas for the sum of $1,764.53, payable two years after date ; that the said John A. Roach was the principal obligor in said note, and the said Mahlon F. Roach was only surety thereon"; that afterward, at the February term, 1874, Daniel Hill, the defendant, brought an action in the coui’t below against the plaintiffs on said note, and that such proceedings were had in said action, that, on the 22d day of March, 1875, the said Hill recovered judgment against the plaintiffs in the sum of $1,-635.77, a complete transcript of which said proceedings and judgment was filed with the complaint; that the said John A. Roach had at the time, and still continued to have, a just and valid defence to said note, which defence was set forth in the answers filed in the action in which such judgment was
' The defendant demurred to the complaint, but his demurrer was overruled, and issues were formed in the cause.
A jury returned a verdict favorable to the plaintiffs, and the court thereupon ordered and adjudged, that the judgment sought to be reviewed should be so far opened and modified as to permit the plaintiffs herein to file their answer in the action in which it-was so rendered, tendering and presenting any defence which they may have had to such action at the time of its commencement, or at the time of the rendition of such judgment, and rendered judgment against the defendant for costs.
The questions discussed here by the appellant have refe'rence solely to the sufficiency of the complaint. The appellant insists that his demurrer to the complaint ought to have been sustained:
First. Because the alleged newly-discovered matter was immaterial;
Second. Because no proper acts of diligence were averred;
Third. Because a complaint for review can not be entertained after the judgment has been affirmed upon an appeal to the Supreme Court.
The first objection urged to the complaint is based mainly upon the statements contained in the affidavit of Clark, which was filed with, and thereby intended to be made-a part of, the complaint.
There is a well recognized distinction between a proceeding to review a judgment on account of material new matter discovered since it was rendered, and an application for a new trial upon the ground of newly-discovered evidence. Webster v. Maiden, 41 Ind. 124; Hall v. Palmer, 18 Ind. 5. In the latter case, the affidavit of the witness, by whose
The averment of new material matter discovered since the former trial has only to be supported, in the first, instance, as was done in this case, by the oath of the complainant, and then to be proven upon the trial in the same manner as other material averments of the complaint must be proven. 2 R. S. 1876, p. 249, sec. 588. As analogous to the rule thus stated, see the case of Sanders v. Loy, 45 Ind. 229.
The affidavit of Clark,' filed as above stated, became at-most a mere exhibit in the cause, which neither added to, nor-subtracted any thing, from, any of the substantial averments of the complaint, and hence could not be considered, for any practical purpose, a part of the complaint. Parsons v. Milford, 67 Ind. 489. In judging, therefore, of the materiality of the alleged newly-discovered matter in this case, we must look to the averments contained in the body of the complaint, and not to the affidavit of Clark; and, judged of' in that way, the new matter set up in the complaint appears to us to have been palpably material. We think the complaint also showed reasonable diligence in endeavoring to ascertain, at the proper time, the matter claimed to have been then but recently discovered. At all events, no material failure of the complaint in that respect has been specifically pointed out.
It is unquestionably true, that, in this State, a complaint for the review of a judgment for error of law in the proceedings will not lie after the judgment has been affirmed upon an appeal to this court; but we know of nothing, either in principle or based upon authority, which can be properly construed to prevent the- prosecution of a complaint for review, as in this case, for material new matter, after the
We are unable to see any valid objection to the complaint.
The judgment is affirmed, with costs.