185 Iowa 646 | Iowa | 1917
The form of the application was not questioned by counsel for appellant, and, as the allegations thereof substantially conformed to the requirements of a petition for new trial on the ground of neiyly discovered evidence, it was properly treated as such by the court. Callanan v. Aetna National Bank, 84 Iowa 8; Heim v. Resell, 158 Iowa 356; Hunter v. Porter, 124 Iowa 351; Wilson v. McCutchen, 138 Iowa 225.
This court, in Heim v. Resell, supra, held that:
“When an unsuccessful party desires to secure a new trial on the ground of newly discovered evidence, by a proceeding instituted otherwise than within three days, as provided in Code Section 3756, he must support his allegations by evidence, and that affidavits which might have been received on a motion for a new trial, died within three days, are not competent or sufficient in themselves to sustain his allegations.”
See, also, Carpenter v. Brown, 50 Iowa 451; Markley v. Owen, 102 Iowa 492.
It was incumbent upon the plaintiff to offer the evidence relied upon as in an ordinary proceeding, so that the court could determine whether the same was cumulative, material, or competent to establish any issue in the case. Town of Manson v. Ware, 63 Iowa 343; Heim v. Resell, supra.
Had affidavits or secondary evidence been offered, and the defendant failed to object thereto, he would have waived the right to thereafter complain because the best evidence had not been produced. This is the effect of the holding in National St. Bank v. Boesch & Son, 90 Iowa 47, cited by counsel for appellee. But the alternative of objecting to inadmissible testimony or waiving such objection was not presented, as no evidence of any character was offered upon the hearing. Surely, counsel for appellant was under no obligation to demand the introduction of evidence to sustain the allegations of plaintiff’s petition, but had the undoubted right to await the offer thereof, and then object thereto,
. While it is true, as claimed by counsel, that the trial court is presumed to know what occurred during the trial, yet it was held, in Baker v. Mygatt, 14 Iowa 131, that it could not take judicial notice of the record in another case, even though the judge in fact remembered the contents of such record; while the Supreme Court of Maryland, in Matthews v. Matthews, 112 Md. 582 (77 Atl. 249), held that, ' on the second hearing of a divorce case, the court could not take judicial notice of the record of the former proceeding. See, also, Streeter v. Streeter, 43 Ill. 155. The Supreme Court of West Virginia, in State v. Davis, 68 W. Va. 142 (69 S. E. 639) held that a criminal court could not take judicial notice of a former conviction, even though the same occurred on a previous day of the same term. This court, in Constantine v. Rowland, 147 Iowa 142, which was ’an action for damages on an indemnifying bond in an attachment proceeding, held that th`e court could not take judicial notice of the statement in the petition in the attachment suit that defendant was a nonresident of the county where the action was brought. In the following cases, it was held that, while a court will take judicial no
The directed verdict was returned by the jury on January 11, 1916, and on the same day, judgment was entered thereon in favor of appellant. Defendant, when the verdict was returned, filed, and judgment entered, ceased to be a party to the further proceedings, ana was not required, for any purpose, to take notice of the further progress of the trial. The jurisdiction of the court had terminated, for all purposes except to pass upon a motion for new trial, filed within three days after the verdict. Jurisdiction to pass upon a petition for new trial upon the ground of newly discovered evidence, filed more than three days after the verdict, could only be had upon
Numerous of the above-cited cases hold that the court cannot take judicial notice of the record or proceedings in the same case tried at a prior term, even though the trial judge personally remembers the record in detail. In Heim v. Resell, supra, the doctrine that it is incumbent upon the moving party to present the newly discovered evidence upon the hearing of a petition for new trial, is clearly and emphatically stated. The record does not disclose that any evidence, competent or otherwise, of the alleged newly discovered evidence was offered or before the court upon the trial of the petition. The reference to exhibits and shorthand notes in the petition, making the same a part thereof, was not different from a like reference thereto in pleading generally. The court could not take judicial notice of the evidence offered upon the trial of the remaining defendants, after verdict had, by direction of the court, been returned in favor of appellant.
Other matters urged are without controlling merit; and it is our conclusion that the petition for new trial