2 Ind. 117 | Ind. | 1850
This was a bill in chancery in the Court below by Palmerton against Mason for the purpose of obtaining a new trial of a cause at law, on account of new
The Court erred in continuing the cause for the reason assigned. Section 64, of the R. S., p. 842, is as follows : “When no depositions are to be taken, the cause shall stand for hearing at the term at which the issue shall have been completed; but when depositions are to be taken the cause shall stand for hearing at the next term after the completion of the issue, unless the Court, for good cause shown, grant further time.” And see Andrews v. Jones, 3 Blackf. 440.
At the April term, 1848, the cause was submitted to the Court, and a decree, awarding a new trial, rendered. This decree cannot be sustained.
1st. Because due diligence is not shown in endeavoring to obtain the evidence for use in the cause at law;
2d. It is shown that the evidence was obtained in time to have been made available in the cause at law, notwithstanding the want of diligence;
3d. It is not shown that the evidence would have been of any advantage to the defendant in the suit at law, even had he availed himself of it upon the trial there.
We learn from the record that the suit at law in which a new trial is sought, was commenced on the 24th of October, 1845, on a note given by Palmerton to Mason, June 13, 1837, for 200 dollars, at 10 per cent, per annum., interest; that, on the 5th day of the May term of the
It will be observed that it is not alleged that the memorandum in question had been lost, and that search had been made particularly for it. It had remained all the time in Palmerton's possession, on the same leaf, and in the same place where he had directed, but had not been produced on the trial, from pure forgetfulness, in himself, that he had it. It is alleged that, in this state of forgetfulness, exploring expeditions had been made among his papers, and voyages of discovery among his neighbors, to see if perchance he might stumble on any thing that could be of service to him on the trial. Now, it might be doubtful if this statement makes a case enti
But, secondly, it appears that, notwithstanding the want of diligence in Palmerton, the memorandum of settlement was discovered in time to have been made available in the cause at law. Palmerton had returned with it to Court by the 21st day of May, of the said May term; for on that day he filed the present bill in chancery for a new tidal on account of having found it; and it further appears that on the 30th day of the same month, nine days after his return to Court, the Court was still sitting; but when it adjourned does not appear, nor is it material. Here, then, were nine days, at least, in which Palmerton might have moved for his new trial at law; and, by our practice, had his motion there been wrongfully refused, he had his remedy by appeal or writ of error to this Court. He had, then, a complete remedy at law. It is true that it is said in the English books to be a general rule that a motion for a new trial cannot be made after a motion in arrest of judgment overruled, and hence, perhaps, not after final judgment rendered; but says Petersdorf, Vol. 18, p. 185, “this rule, however, extends only to cases where the party has a knowledge of the fact [on which he grounds his motion for a new trial] at the time of moving in arrest of judgment. Treberril v. Stamp, 2 Salk. 647. — Philips v. Fowler, Com. 525. — Pr. Reg. 409. — Bul. Ni. Pri. 325, 326.” And by our statute, R. S. 735, s. 333, “no judgment in any Court of record shall be set aside on motion, unlesss such motion be made during the term at which such judgment was rendered.” The Court has power over its records during the whole of such term.
Thirdly. It is not shown that the evidence discovered would likely have changed the result of the trial at law.
The state of the evidence upon that trial is not given.
The decree is reversed with costs. Cause remanded,- &c.