114 Mo. 426 | Mo. | 1893
Lead Opinion
Plaintiffs sued in ejectment to recover possession of a strip of land two feet wide and about sixty-nine feet in length, lying adjacent to and
As is usual in contests over division lines, there was great conflict in the evidence, particularly in the testimony of the surveyors, who differed as to locations of certain corners. We have looked through and examined the testimony carefully, as also the instructions, and can find no disputed legal principle of surveying involved in the case. The theories of surveying upon which the case was tried by defendant were adopted by the court in a series of carefully prepared declarations of law asked by him. One declaration of law asked by plaintiffs and given by the court is objected to by defendant as presenting an erroneous theory. This will be considered.
The disputed corner was the northeast corner of section 7. The evidence tended to prove that the witness trees and other government monuments of this corner had been destroyed and obliterated and the corner lost prior to 1871; that the county surveyor, ■during that year, established such corner in the manner provided by the statute and again in 1889 another surveyor of the county reestablished the corner which corresponded with that' previously established. On the other hand plaintiff offered evidence tending to prove that a stump of an original government witness tree to this corner was found by a surveyor of the county in 1887 and from that the true corner was found. These facts were testified to in chief by a
If the corner was lost by reason of the destruction or obliteration of the government monuments, then the corner established would place the improvements of defendant on lot 8; if the government corner was known from the stump of the witness tree, then the proper line therefrom would place the improvements on the street as charged.
Afterwards, some days and during said term, on March 1, 1890, defendant filed in the cause his motion and affidavit asking to be permitted to introduce newly discovered, material evidence, which was denied him. One of the grounds for new trial assigned by defendant in his motion was the discovery since the trial of new and material evidence.
I. The declarations of law given at request of the plaintiffs of which complaint is made declared, in effect, that when a witness tree of a section corner remains, then the corner is not lost; and if witness Stepp, while county surveyor, when surveying the ground afterwards platted, and known as Allen and Burns’ addition, found the stump of the witness tree at the corners of sections 5, 6, 7 and 8 and from said stump ran a line, the proper distance and at the proper angle as called for by the field notes of the original United States survey, and thereby located the said corner, and from said corner so located, established the section line between sections 7 and 8, by running a line from the southeast corner of section 7 to said corner so located, and that a line running parallel to said section line, and at a distance of seven feet to the west of the same, would lie west of the east line of the barn of Peter B. Burns, then the finding will be for the plaintiff.
This declaration of' law correctly declares the well settled principle that corners which ai’e shown to have been originally established by goverment surveyors are conclusive and shall be accepted as the true corners, however inaccurate the work by which they were originally established may have been. If witness trees or other goverment monuments are known or found and identified, the corners to which they refer must be ascertained by reference to them, and not by the regulations provided for establishing lost corners. Climer v. Wallace, 28 Mo. 559; Knight v. Elliott, 57 Mo. 325. The identity of these government corners, or of the monuments bearing witness to them, can be shown by the testimony of anyone having knowledge of the fact and does not depend for proof upon the record of a survey by a county surveyor. Jacobs v. Moseley, 91 Mo. 460; Major v. Watson, 73 Mo. 662.
The fact that county surveyor Stepp may have made no record of the discovery of the stump of the witness tree, or reference to it when he surveyed the land in 1887, goes to his credibility as a witness, rather-than the competency of his testimony. The omission from the record of so important a fact might well have been considered in determining the weight to be given his testimony; but it would not be sufficient to justify the court in excluding it altogether.
II. The objection most seriously'urged by defendant is to the ruling of the court in refusing to reopen the case and permit him to introduce evidence in
One ground for a new trial urged by defendant was the alleged discovery after the trial of new evidence relevant to the issue, and rebutting the testimony introduced by plaintiffs, in reference to knowledge of the stump of a witness tree. This ground of the motion for new trial was supported by the affidavits of defendant and four other persons, all of whom swore to facts and circumstances inconsistent with and contradictory of the evidence of witness Stepp and others in regard to the existence of such stump at the time fixed by these witnesses. Defendant also swore that the evidence of these witnesses was discovered after the trial, and that he was taken by surprise when witness Stepp testified to having discovered said stump.
III. In speaking upon this ground for a new trial, Hilliard, in his work on New Trials, page 491, says: “The general rule upon this subject is, that after-discovered evidence, in order to afford a proper ground for a new trial, must be such as reasonable diligence on the part of the party offering it could not have secured at the former trial; must be material in its object, going to the merits of the case, and not merely cumulative and corroborative or collateral; and must be such as ought to be decisive and productive on another trial of an opposite result on the merits.” To the same effect see Goff v. Mulholland, 33 Mo. 503; Mills v. Sampsel, 53 Mo. 360; State v. Wheeler, 94 Mo. 252; State v. McLaughlin, 27 Mo. 111.
It is also well settled that the object of the newly discovered evidence must be not merely to impeach the
It is rare that a defeated party is not afterwards able to remember evidence which was before the trial thought unimportant; disappointed friends also come forward with the information of facts which were not previously disclosed, and, if the discovery of new material evidence alone would be ground for new trial, there would be no end to litigation. Hence it is said: “Motions of this kind are to be received with great caution because there are few cases tried in which something new may not be hunted up; and because it tends very much to the introduction of perjury, to admit new evidence after the party who has lost the verdict has had an opportunity of discovering the points both of his adversary’s strength and his own weakness.” Moore v. Bank, 5 S. & R. 41; Hilliard on New Trials, 493. New trials on that ground should “be granted as an exception and refused as a rule.” Cook v. Railroad, 56 Mo. 382.
These rules must be applied to all cases, though, as in this one, there is nothing to raise a suspicion as to the truthfulness and honesty of the new evidence.
The record shows that witness Stepp testified as one of the first of the witnesses who were called in chief in behalf of plaintiff. In this examination he told about finding the stump of the witness tree. The newly discovered evidence tended to contradict this testimony of Stepp, and to prove that no such stump had existed within the memory of man. One former surveyor, who had suryeyed over the same section corner, was named in the motion for new trial as a witness whose evidence had been discovered since the trial. Now this witness was examined by defendant in reference to this survey
While there is no doubt this new evidence, if it had been introduced, may have had weight with the trial ■court, still we are convinced that it was only cumulative and contradictory of witness Stepp, and that, had the evidence been deemed of importance at the time, so •far as appears, it could have been obtained at the trial ■without difficulty. Under the foregoing rules we do not think cause for a new trial on account of pewly ■discovered evidence shown.
There was a conflict in the evidence; the declarations of law given show that the issues were determined by the court upon correct legal principles; the finding of the court was justified by the evidence, and we do not think the judgment should be disturbed. Judgment affirmed.
Rehearing
ON BEHEABING-.
I. In his motion for rehearing the defendant claims that the court overlooked his objections to plaintiff’s first instruction, to which he makes many.
The chief objection to the instruction is because of the clause which reads as follows, viz.: “If the court believes from the evidence that R. J. Stepp was county surveyor of Clay county, Missouri, at the time he made the survey of the piece of ground afterwards platted
The cause was tried by a court of experience and learning and it is utterly impossible to see how he could have been misled by this instruction or have attached any undue importance to the testimony of this witness. It is certainly not to be inferred from the fact that the instruction refers to ' him as county surveyor. Something must bo conceded to the intelligence and powers of discrimination of the trial court in all matters that come before it, and more especially in passing upon tho weight of testimony, and the credibility of witnesses with whose characters and standing he is in a large degree quite familiar, and especially is this true in the rural districts. If cases were to be reversed because of giving instructions subject to verbal criticism or technical objections, there would be but few that would withstand the assaults of the legal- critic.
It is rarely if ever that two different surveyors run the same line in the same place, and, injcontroversies over surveys and boundary lines as in the . case at bar, it may be safely stated that there is no question arising in the practice of the law where witnesses are so certain to differ, and where the evidence is so universally conflicting, as in cases of this character.
We think that the instruction presented fairly the law of the ease as far as it went, and that defendant’s rights were not prejudiced thereby. The instructions taken
Nor is there any conflict between the instructions given on the part of the plaintiff and those given in behalf of the defendant. They simply present different theories of the case as presented by the evidence.
II. It is also claimed by defendant that the court committed error in refusing to open the case after it had been finally submitted, and in refusing to allow defendant to introduce other and additional evidence. The case was tided on the twenty-eighth day of February, 1890, and the court held it under advisement until the twenty-second day of April next thereafter. On the twelfth day of March after the cause was submitted, defendant asked permission to introduce newly discovered and material evidence, which the court declined to do. This was a matter entirely within the discretion of the trial court, and unless this discretion was unwisely or harshly exercised we have no authority whatever to interfere.
There was a vast amount of testimony introduced on the trial, pro and con, and it would seem that neither of the parties have any cause to complain because of the want of a fair and impartial trial. After the court had heard the voluminous amount of evidence that had already been introduced, it was certainly no abuse of its discretion to refuse to reopen the case. Not only this but the newly discovered evidence was simply contradictory of the statements of the witness Stepp and would not in all probability have produced a different result of. the cause, and where such is the case a new trial will not be granted. State v. Welsor, decided at this term, and authorities therein cited.