114 P. 524 | Utah | 1911
Appellant, as the alleged owner, brought this action to recover from the respondent a team, wagon, and one set of double harness. The complaint is in the usual form in an action of claim and delivery. The respondent in his answer denied the allegations of the complaint, and alleged ownership in himself. A trial to a jury resulted in a verdict for respondent. The court entered judgment on the verdict, and the appellant prosecutes this appeal.
The evidence at the trial, in substance, was to the effect that in March, 1908, at Green River, Utah, the appellant was the owner, and in possession, of a team consisting of a horse and a mare of the value of three hundred and seventy-five dollars, a Fish Brothers lumber wagon of the value of one hundred dollars and a set of double harness of the value of forty dollars; that the team at the time aforesaid was in
The-first assignment of error relates to the bills of sale and -agreement before referred to. It is contended that the court committed prejudicial error in admitting in evidence the bills of sale and agreement aforesaid. At the time they were offered in evidence, appellant’s counsel objected to their admission upon the grounds that they were “incompetent, irrelevant, and immaterial.” The objection was overruled, and the court in admitting them stated at the time that he did so “provisionally upon their being connected with the plaintiff in the case.” It is now contended by counsel that respondent did not connect the title sought to be transferred by the bills of sale with appellant’s title, ancLhence it is urged the bills of sale were not evidence as against appellant for
Appellant also assigns numerous other errors relative to the admission and exclusion of evidence. While the court might well have sustained some of appellant’s numerous objections, yet the evidence which was either admitted or excluded was of such a character that the admission upon the one hand, and the exclusion upon the other, could in no way have prejudiced any substantial right of appellant. Whatever error was committed, therefore, in this regard, was error without prejudice, and needs no further consideration.
It is also asserted that the court erred in refusing to charge the jury as requested by appellant. We have carefully examined the requests, and we do not think that the court committed prejudicial error in refusing to give
Appellant also strenuously insits that the court erred in overruling its motion for a new trial for various reasons. The principal ground, however, is the one of newly discovered evidence. While it is true that from the affidavits filed by appellant in support of that ground it appears that, if the jury believe the alleged newly discovered evidence set forth in said affidavits, the result will probably be different, yet it is also true that much of the alleged newly discovered evidence is merely cumulative, and that there appears an absolute want of diligence on the part of appellant to obtain the alleged newly discovered evidence at the trial. The record in this regard presents a case where, -after trial, a defeated party begins to loot up the evidence to sustain the allegations contained in his pleading. Courts cannot grant new trials merely because a defeated party, after an adverse decision, makes a showing that upon a second trial he can produce additional evidence in support of his contentions which will probably turn the decision in his favor.
Finally, it is contended that the verdict and judgment are not sustained by the evidence. We are of the opinion that this contention must be sustained. Counsel for respondent frankly concedes that there is no direct evidence connecting