25 Kan. 426 | Kan. | 1881
The opinion of the court was delivered by
The plaintiffs filed in the district court of Elk county a petition for a new trial in the case of L. L. Turner v. H. L. Toby, A. A. Toby, William Dory and M. S. Manwell, on the ground of newly-discovered evidence ma
“A. A. Toby, in 1878, came to his bank and presented two or three promissory notes, purporting on their face to be signed by H. L. Toby, A. A. Toby, M. S. Manwell and William Dory. Two of the notes were for $500 each, and one for $300. That he told A. ,A. Toby the signatures of both M. S. Manwell and Wm. Dory were not genuine; that after some considerable conversation, said Toby admitted the signatures of Manwell and Dory on the notes were forgeries, and then burned them in his presence; that he knows from examination the signatures of Manwell and Dory to the note of September 25th, 1878, were also forgeries, being well acquainted with such signatures.”
W. D. Anderson says:
“A. A. Toby told him in the early part of September, 1879, he would have to skip the country on account of some trouble
H. M. Jackson says:
“Have been intimately acquainted with one A. A. Toby for the last seven years, and that on the night of the 11th or 12th of September, 1879, some one drove up to the house of this affiant and called ‘hello/ and I and father went out and found it was A. A. Toby. We had a conversation with him, in which conversation Toby said to us that he was about to get into trouble with Dory and Manwell about some notes, which Dory and Manwell had signed as sureties for Toby, and which signatures, Manwell and Dory, (Toby told us) were forgeries; that he would have to skip the country. This affiant said to Toby, ‘You take it mighty cool; it is risky business to forge notes in that way, and if Dory and Manwell catch you it will go hard with you/ Toby replied, ‘That he knew just what he had to go through with, and it was no use to get excited; if Dory and Manwell did catch him, he would make it hot for them/ Toby then asked my father to jump into the buckboard which he was driving, and when father got in, Toby told me ‘not- to say anything to Mat. about it, and not wake the rest of the folks up, and not to tell anybody that he was here.’”
John Stivers says:
“He resides in Grenola, Elk county, Kansas, and is acquainted with A. A. Toby; that sometime in the month of September, 1879, A. A. Toby came to him and wanted him to take him away. In the course of the conversation, he said to him that he had got into trouble about a note and had to leave, and seemed anxious to get away, but said that when the time came he would play h — 1 with somebody. I do not think this conversation applied to the nóte.”
After a perusal of this and other like testimony set forth in the affidavits attached to the petition for a new trial, we are compelled to hold the petition insufficient. The so-called newly-discovered evidence could not be introduced upon a new trial, with the exception of Hull’s testimony as an expert, because it is not admissible under any rule of evidence known to the law. A. A. Toby was in default, and in the trial of the issues of the original case between Turner, Man-
While the testimony of Hull to the effect, “that he had carefully examined the signatures of Manwell and Dory to the note handed him by Manwell, and that the signatures, and finch of them, were forgeries in his judgment,” would be competent upon proof that Manwell exhibited to him the note in question; yet such testimony is merely the opinion of an expert, not by any means conclusive, and really of doubtful force. We do not think a new trial ought ever to be granted, if the only object of the newly-discovered evidence is to obtain the evidence of a single expert as to the genuineness of signatures. As a rule, motions for new trials on the ground of newly-discovered evidence after the term at which the decision or judgment is entered, are regarded with disfavor and distrust, and the strictest showing concerning the materiality of the evidence and due diligence is required. If the plaintiffs needed the evidence of experts on the trial, they should have taken steps to obtain it in Elk county, and if not obtainable there, then from some other quarter.
Counsel for plaintiffs complain very much of the finding •of the court as being against the evidence. The original case is not here, and therefore we have no right to pass upon the judgment rendered. Perhaps injustice has been done plaintiffs, but on the record before us we are in no condition to afford any relief. “ To obtain a new trial on newly-discovered evidence certain well-defined prerequisites are indispensable.” (3 Graham & Waterman on New Trials, p. 1021.) The conditions upon which a new trial ought to have been granted do not exist in the petition therefor, and for the reasons heretofore given we decide the court committed no error in sus-, taining the demurrer.