73 S.W.2d 36 | Ky. Ct. App. | 1934
Affirming.
The appellant is asking us to award him a new trial of an action No. 159506; such relief having been denied him by the trial court.
About September 1, 1922, William Keiper and his nephew August Norheimer, formed a partnership for the purpose of erecting dwelling houses which they expected after completion to sell at a profit.
By the terms of their agreement, Norheimer was to give his active attention to the erection of these houses and Keiper was to furnish the money needed to pay for the lots, the material used, and the labor costs, including as an item of labor costs a weekly salary to Norheimer. When the houses so erected were sold, it was their agreement that Keiper should receive from the sale all money he had expended and the profits should be divided, as they say, "fifty-fifty."
They began their operations in a part of Louisville known as Strathmoor. They built four houses, one of which they sold for $12,000, and, as the demand for dwellings had slowed down, they suspended their operations and rented out the other three. Keiper got the $12,000 from the house they sold and the rent from the ones that were rented.
If we were forced to take a position, we would at least require this much: If a judgment is obtained by perjury, the unsuccessful litigant subsequently to obtain a new trial must offer to show and must clearly and convincingly show (a) that such evidence was false; (b) that the result was produced thereby; (c) that the successful party participated therein; (d) that its nonexposure then was not due to negligence of the unsuccessful party; (e) that ordinary diligence would not have anticipated it; (f) that diligence was exercised to expose it then; (g) that he can expose it now; and (h) that the means by which it is proposed to expose it now were not available to him then. Surely Norheimer would not be entitled to more.
Now he charges Keiper gave perjured testimony, but he does not show that the means by which he proposes to expose that alleged perjury now were not to him available for its exposure then. The court did not err in dismissing the petition.
Judgment affirmed.