45 Ind. 229 | Ind. | 1873
This was a complaint for a new trial under section 356 of the code, 2 G. & H. 215, on the ground of newly-discovered evidence. A demurrer was sustained to the complaint, and that ruling is assigned for error.
Various objections are urged to the complaint by counsel for appellee. The first is, that the evidence given upon the original trial is not put in the record by a bill of exceptions. The objection is not well taken. Counsel seem to have confounded this proceeding with a motion for a new trial
When the application is made after the term by a complaint, the proceeding is a new and independent one, and cannot be fastened upon the former proceeding, which had already resulted in a judgment, and was no longer pending in court. The application, when made after judgment and at a subsequent term of the court, must, as we have seen, be regarded as an independent proceeding, and must set out the issues upon the former trial and the evidence given on such trial, with the newly-discovered evidence. An issue must be formed on the complaint, and the issue thus formed must be tried by the court. Upon such trial, the plaintiff should introduce in evidence the record of the former trial, prove what the evidence was upon such trial, the newly-discovered evidence, and show that it had been discovered since the term when the case was formerly tried, and what diligence he had used to discover the evidence before the former trial. The defendant should in like manner introduce his evidence orally before the court. If the new trial is refused, the party appealing to this court should put into the record by a bill of exceptions all the evidence, documentary and oral, which was offered and considered by the court in the application for a new trial. When this is done, this court will have before it the issues and evidence on the former trial and the newly-discovered evidence, and can determine whether the court below improperly refused the new trial.
The complaint for a new trial contained the following:
X. The complaint, answer, and reply in original action.
2. The exhibits filed with the complaint and answer.
3. Interrogatories submitted and answers thereto.
4. The evidence given on the former trial.
5. The verdict of the jury.
6. The motion for a new trial.
7. The newly-discovered evidence, including the affidavit of the witness by whom the newly-discovered evidence could be established.
8. Allegations in reference to diligence and the discovery of the new evidence.
9. Prayer for a new trial.
It is very obvious that the complaint is not subject to the objection that the evidence upon the former trial is not put in the record by a bill of exceptions. There is no mode in which it could be in the record at the time when the demurrer was filed to the complaint. As we have seen, the plaintiff was bound to set out in the complaint what he understood the evidence was upon the former trial, but upon the trial, he would have been required to prove what the evidence on the former trial actually was; and on appeal to this court, all the evidence given upon the application for a new trial would have to be set out in a bill of exceptions. The complaint purported to set out all the evidence given on the former trial. This was sufficient.
The next objection urged to the complaint is, that it does not show that reasonable diligence had been used to discover the new evidence before the former trial. The original action was brought by the appellant as administrator de
We think the appellant, under the circumstances stated, is not chargeable with culpable negligence in not ascertaining the fact of such payment before the former trial or before the close of the term at which the trial was had. She was
Finally, it is earnestly contended by counsel for appellee, that as the evidence given on the former trial is not put in the record by a bill of exceptions, it cannot be told but that the evidence of Mills is cumulative only. The complaint contains what purports to be all the evidence given on the former trial. The demurrer admits all the allegations of fact in the complaint to be true. From the evidence set out in the complaint, we are enabled to see that no evidence was given on the former trial in reference to such payment. For the purpose of disposing of the ruling of the court below on the demurrer, we are bound to assume what the demurrer admits, that the averments of fact in the complaint are true. If they are untrue, the appellee can show such fact on the trial. It is averred in the complaint that the fact of such payment by Mills to the appellee was not discovered until after the close of the term at which the former trial was had. This fact will have to be proved upon the trial. The newly-discovered evidence is material, and, if true, shows that a great wrong has been perpetrated, and that such evidence will probably produce a different result.
We think the complaint is sufficient, and that the court erred in sustaining a demurrer thereto.
The judgment is reversed, with costs ; and the cause is * remanded, with directions to the court below to overrule the demurrer to the complaint, and for further proceedings in accordance with this opinion.