Hoskins v. Hattenback, 14 Iowa 314

Hoskins v. Hattenback

14 Iowa 314 | Iowa | 1862

Wright, J.

By the Revision of 1860, § 3116, it is declared that the facts stated in the petition therein con*318templated shall be considered as denied without answer. As the court below, in this case, on overruling the demurrer, at once entered a decree ordering a new trial, it is manifest that the bill was treated as in equity, addressed to the chancellor, asking a new trial upon the ground of newly discovered evidence. And that this is its true character is but too evident from its substance and form. We may dismiss, therefore, the question made by the first ground of demurrer: Whether § 3116 applies to cases heard and determined before the taking effect of the Revision of 1860 ?

The second ground of demurrer is clearly based upon a misunderstanding of the record. All presumption that Charles occupies the position of a Iona fide holder of this judgment is rebutted by the express averment that he paid no consideration for it.

Under the last cause of demurrer the more important questions are raised for our consideration. The language used is very general, and under it we can consider only such matters as strike at the substance of the bill. If there are only formal defects, or such as would not vitiate complainant’s claim on the final hearing, we do not think they can be reached by this demurrer. By the Chancery practice, to say by demurrer, that there is “no equity in the bill,” reaches all matters of substance and those only. If' the objection is to the bill in point‘of form, the particular defects or objections must be stated. Story’s Eq. PI, § 455. The true inquiry in this case then is, whether, admitting the whole bill to be true, the court was justified in giving complainant the relief or assistance asked. If there is a mere want of due certainty in the allegations, or' if the bill is loose and inartificial in its structure only, such defects are of form only and cannot now avail respondents. Assuming, therefore, that complainant should have stated more specifically the diligence used to obtain the desired evidence before the trial of the law action; that he should *319have stated the facts showing such diligence and not his conclusions, we do not think the objection can be made under this demurrer. If the bill is true, and it is so taken, it is to be treated as though the testimony on the hearing established the ultimate fact that due and proper diligence had been. used. And the same remark applies to some other objections now urged to the bill.

But does the bill show sufficient to authorize a court of equity to grant a new trial ? The text-books and cases are full of learning upon this subject. "Without, however, entering into the discussion, we state such general propositions as are necessary to the determination of the case before us.

In Colyer v. Langfort's Administrator, 1 A. K. Marsh., 174, it is said that: “In general, where it is proper for a court of law to grant a new trial, if the application is made while that Court has power to do so, 'it is equally proper for a court of equity to grant a new trial, if the application be made on grounds arising after the court of law had ceased to have power to do so.” That case was not unlike this, and is sustained by Deputy v. Tobias, 1 Blackf., 811.

In Balance v. Loomis, 22 Ill., 82, Walker, J., uses this language: “ If it appears that the judgment complained of is unjust, and that the party in good faith has used, or attempted to use, all the means given him by law to assert ■his rights, by active efforts on his part, made in good faith and to the extent that a party has it in his power to use, but has, nevertheless, been prevented from presenting his ' defense to the claim, equity should grant a new trial at law.” And see Story’s Eq. Jur., § 887.

In this case the testimony of the witness referred to could not have been obtained at the time of the trial. It consists^ of declarations or admissions made by Hattenback long after that time. Of its materiality there can be no room *320for doubt. As to its effect or weight, of course it is not for us to speak, further than to remark, that if the witness shall be credited by the jury, then according to the averments of the bill, complainant’s defense would be complete and a different verdict would be found. Upon the whole, therefore, we are not inclined to interfere with the discretion exercised by the chancellor in ordering the new trial;

Affirmed.

The counsel for the appellant filed a petition for rehearing, which was considered by the court and overruled.