17 La. 82 | La. | 1841
delivered the opinion of the court.
Defendant is appellant from a judgment by default rendered and made final against him. Before taking his appeal, he made a motion for a new trial, which was overruled by the lower court; and as the record comes up without any statement of facts and without the proper certificate of the clerk that it contains all the evidence adduced in the case, the only question submitted to our consideration, is whether the judge erred in overruling the motion for a new trial.
The affidavit of the defendant in support of his motion, is in these words: “ that it is true as alleged in the above statement of grounds for a new trial that the plaintiff’s demand had been, long anterior to the institution of this suit, paid; written evidence of which payment the deponent has lost or mis[84] laid, but that he has discovered since the trial of the cause B. B. a witness who will prove the existence, execution and contents of said lost or mislaid written evidence of payment, testimony which he could not with due diligence have obtained before.” How, in supposing this affidavit to be sufficient, the facts said to have been discovered since the trial of the cause, would be applicable only to a defence which was not set up, and it is perfectly clear that whenever a new trial is applied for on account of new evidence discovered since the cause was tried, the party must show not only that he has used every effort and diligence in his power to procure it, but also that it is admissible and material under the pleadings. 7 La. Rep. 82; 10 La. Rep. 155. In this case, however, no issue was joined by the defendant, as the judgment is one by default; but we think that this cannot better his situation, as by an order to authorize the introduction of the newly discovered evidence for the purpose of proving the extinguishment of the debt by payment, such payment must be specially pleaded; 6 La. Rep. 457; and as he would not be allowed to introduce any such evidence without amending the pleadings and filing an answer, which cannot be permitted after judgment. 3 La. Rep. 487. If the defendant’s allegation that he has paid the debt be a serious defence, why did he not plead it ? why did he suffer a judgment by default to be rendered against him ? he must have known that a judgment by default is a tacit admission of the justice of the demand. Code of Practice, art. 360. His affidavit does not even show any reason why he
We are of opinion that the district judge did not err in overruling the motion for a new trial.
It is therefore ordered, adjudged and decreed, that the judgment of the district court he affirmed, with costs.