156 N.W. 112
N.D.
1916
Goss, J.

Plaintiff appeals from an order granting defendant a new trial, after a verdict for plaintiff on the merits. The defendant, as sheriff, levied upon $500 paid by one Hewes, mortgage or, in satisfaction of a real estate mortgage given in 1902 to Oscar O. Irwin, mortgagee, and securing five promissory notes of $1,000 each. In August, 1912, these notes were sent to the Bank of New Bockford for collection. The total amount due, $2,293, was paid by Hewes. But before the money was remitted by the collecting bank it was levied upon as the property of Irwin, mortgagee, under a purported judgment in favor of оne Nash, judgment creditor, against Irwin as judgment- debtor. Seymour claims to own the notes and to have owned them since 1903, and denies that Irwin has any interest in them. Irwin also disclaims any interest or ownership in the notes or in their proceeds. Upon the back of each of the four notes in evidence appears the indorsement: “Pay to the order of Oscar O. Irwin and J. J. Seymour, Oscar O. Irwin;” and thereunder an indorsement: “Oscar O. Irwin without recourse.” Upon the payment of the notes to the bank a satisfaction signed by Irwin was by it delivered to Hewes, no assignment of record of the mortgage ever having been made. The question of fact passed upon by the jury was whether Seymour was sole owner of these notes; or instead whether they were owned jointly by Seymour and Irwin, as would be inferred from only the first indorsement on said note. This action is brought by Seymour, who claims their entire and absolute ownеrship and consequently the $500 levied upon and a portion of the proceeds of the notes. The jury found for Seymour. A motion for new trial was then made upon affidavits of Hewes, E. B. Davidson, and H. ■C. Sexton, cashier and vice president respectively of the Bank of New Bockford, and the аffidavits of defendant’s attorneys, Maddux & Binker, — all alleging facts concerning and tending to establish that ‍​​‌​​‌‌‌‌​‌‌‌​​‌‌​​‌‌​‌​​‌​‌​​​​​‌‌​​‌‌‌‌‌​​​​​‌‍the general indorsement, “Oscar O. Irwin without recourse,” upon said *510notes at and before tbe trial, bad been placed tbereon unknown to defendant or his attorneys, after tbe levy bad been mаde on tbe money in tbe Bank of New Bockford; and tbat some time after said levy tbe attorney for Seymour bad procured these canceled notes from Hewes, to whom they bad been delivered by tbe bank upon their payment; tbat tbe four notes bad been transmitted to tbe state of nеw York during said interval and while tbe deposition of Seymour bad been there taken, and were returned with and attached to bis deposition about February 4, 1914. Tbat upon return, tbe deposition together with tbe notes and other papers attached, bad been delivered to attorney Maddux by tbe clerk of court of Eddy county. Tbat tbe indorsement in dispute was then upon said notes. That tidal was bad beginning February 12,, 1914. Tbat one set of depositions of both Seymour and Irwin bad been taken May 16, 1913, at which time tbe notes were not used or present, they being at tbat time in tbe possession of Hewes. Both оf said depositions were returned in May, 1913, preceding tbe trial in February, 1914, and during which interval they were on file in tbe clerk’s office. In said depositions is a question asked by defendant’s nonresident examining counsel of Seymour, “And be (Irwin) indorsed them to you without recourse ?” Plaintiff asserts this shows knowledge in defendаnt in May, 1913, tbat tbe notes bad been so indorsed. All of tbe depositions were offered in evidence on tbe trial. Hnder tbe first depositions, however, taken at considerable length, and at tbe taking of which opposing counsel appeared in defendant’s behalf and cross-examined, сertain admissions were made by plaintiff and Irwin touching tbe ,ownership of tbe notes and óf tbe real estate for which they were given, disclosing tbat tbe notes were taken in Irwin’s name in part payment of tbe purchase price of a farm and personal property in North Dakota, previously acquired and owned jointly by Seymour and Irwin. And it may be here remarked tbat tbe testimony taken before a referee of both these parties establishes a desire to conceal rather than to frankly state tbe facts of ownership and tbe consideration for tbe alleged sale of these notes or Irwin’s interest therein to Seymour. They do not know what was paid, except both testify they got “satisfaction.” They refuse to impart any knowledge on cross-examination, as to what was paid or received for tbe transfer and possession. Both persisted in being evаsive, headstrong and foolish, assuming that there is merit in *511plaintiff’s case. Plaintiff himself was the worse offender, evidently either forgetting or disregarding the fact that he was under oath and giving sworn testimony, even though several times admonished by the referee. This is touched upon to show that there was a sufficient issuе of fact to carry the case to the jury upon the question of whether Irwin still retained his joint interest in the notes and their proceeds. But returning to the affidavits used on motion for a new trial, they further disclose that Pinker examined the indorsements at or just before the notes were collected, and that the general indorsement of “Oscar O. Irwin without recourse” was not on them; that, though causing the levy upon the money as the property of Irwin, Pinker was not present at and took no part on the trial, and had no information concerning it,, being elsewhere engaged; that he had not assisted in preparing the case for trial, and did not see the last deposition or the notes accompanying it until some days after the verdict, when he discovered for the first time the additional indorsement, “Oscar O. Irwin without recourse,” was upon the notes. He also embodies in his affidavit a lеtter sent a few days after the levy to the bank in the state of New York which had transmitted the notes for collection ‍​​‌​​‌‌‌‌​‌‌‌​​‌‌​​‌‌​‌​​‌​‌​​​​​‌‌​​‌‌‌‌‌​​​​​‌‍to the Bank of New Boclcford. In said letter is found the following: “We understand from the Bank of New Pockford that you claim that this is not the property of Irwin, but of another customer оf yourself. Since levying upon this money,, we have inspected the notes, and find that there is an assignment on the back thereof by Irwin, assigning them to himself and another party, but we find further that he gave a discharge of the mortgage, and that the mortgage had never been assigned to anyone in the records of the courthouse, and it is indeed a very unusual thing for any person to buy as large an amount of notes as this, secured by real estate mortgage, without getting an assignment of the mortgage, and on the face of the thing it appears to use that this money is still the property of Irwin, and we intend thаt if any person is claiming it that he shall establish his right thereto. ... We are going to hold this money levied upon as the property of Irwin until it is decided by court that it is not his property.” Pinker asserts that had the disputed indorsement been upon the notes when he wrote this letter he would have known and noticed it. The affidavit of attorney Maddux is that he was the attorney for defendant on trial; that he had no knowledge that the indorsement in *512question had been affixed to the note after the levy and before he procured the notes a week before the trial, in preparation therfor, and that without such knowldge of these facts defendant was “concluded from securing and offering the proof of the facts herein stated,” concerning the affixing of indorsement pending trial. “That plaintiff, through his fraudulent acts, as stated, misled and practised a fraud upon the court and upon defendant, аnd thereby knowingly gained and secured an advantage unfairly and fraudulently and knowingly, and premeditatedly prevented a fair trial of said action, and by reason of such fraudulent practice and conduct was enabled to recover the verdict and judgment herein stated, and not otherwise.” The court in its instructions made reference to all the indorsements, and permitted the notes to be taken by the jury when deliberating upon their verdict. These affidavits in support of a new trial were met by those of Seymour and Irwin and plaintiff’s counsel and his stenographer and the clerk of the distriсt court, all denying that the notes had been altered after they had been paid, and after the levy had been made, and before trial by said indorsement in question. Upon these issues and facts, was it clearly an abuse of the discretion vested in the trial court to order a retrial is the question for determination. Appellant asserts that inasmuch as the indorsement was upon the note prior to the trial, and as counsel for the defendant had the notes and depositions in his possession for a week before and in preparation for trial, with one of defendant’s counsel having personal knowledge as asserted by him, that at the time of the levy said indorsement was not upon the notes, that, therefore, the evidence cannot be held to be newly discovered evidence; and, further, that it is affirmatively shown that failure to notice and present this issue is because of a failure to use diligence to ascertain the facts or properly prepare the case for trial. That, with an absence of either proof of diligence or of newly discovered evidence, it was an abuse of discretion to grant a new trial.

“The statute provides that a new trial may be granted, among others, on the ground of ‘newly discovered evidence material to the party making the application, which he could not, with reasonable diligence, have discovered ‍​​‌​​‌‌‌‌​‌‌‌​​‌‌​​‌‌​‌​​‌​‌​​​​​‌‌​​‌‌‌‌‌​​​​​‌‍and produced at the trial.’ It is conceded that a motion based upon this ground is addressed to the sound judicial discretion of the trial court. The discretion vested in a trial court in the determina*513tí on of such motions is based on the theory ‘that the judge who tries a case, having the parties, their witnesses, and counsel, before him, with opportunity to observе their demeanor and conduct during the trial, and note all incidents occurring during its progress likely to affect the result thereof, is better qualified to judge whether a fair trial has been had and substantial justice done than the appellate tribunal.’ ” Aylmer v. Adams, 30 N. D. 514, at 522, 153 N. W. 419. Again at page 531, it is said: “Diligence is a relаtive term, incapable of exact definition, and depends essentially upon the peculiar circumstances of each case. . . . And, in determining the question of whether or not ‍​​‌​​‌‌‌‌​‌‌‌​​‌‌​​‌‌​‌​​‌​‌​​​​​‌‌​​‌‌‌‌‌​​​​​‌‍the moving party used due diligence, all the circumstances, including the situation of the parties and the witness who will give the newly discovered evidence, will be considered.” McGregor v, Great Northern R. Go. 31 N. D. 471, 154 N. W. 261, 268; Malmsted v. McHenry Teleph. Co. 29 N. D. 21, 149 N. W. 690.

The trial court has held the evidence to be newly discovered, and excused defendant and his counsel from failure to discover the same before trial. The evidence is newly discovered, if it be assumed, as it must be, that there is reasonable probability of the fact of the indorsement having been added to the notes after the levy and before they were delivered to Maddux a week before the trial. That one of defendant’s attorneys knew that at the time of the levy said indorsеment was not upon the notes, and the other one of his attorneys had knowledge that, shortly before the trial, the indorsement was on said notes, does not necessarily, under the proof that neither one knew all of said facts from which the conclusion could be drawn that the indorsement hаd been placed on the note during said period, prevent the testimony from being newly discovered in fact subsequent to the trial. Had the same attorney had occasion to know the indorsements upon the notes at the time of the levy, and of the indorsements thereon át the time of the triаl, it is doubtful if the 'testimony could be claimed to be newly discovered, because the fact would be otherwise. Such is not the case at bar, where the trial court has found that the evidence was newly discovered.

As for diligence in preparation for trial, courts should be slow to relievе from a want of it by granting new trials upon facts which should ‍​​‌​​‌‌‌‌​‌‌‌​​‌‌​​‌‌​‌​​‌​‌​​​​​‌‌​​‌‌‌‌‌​​​​​‌‍have been discovered before trial had due diligence been used. The discovery after verdict that these indorsments had been placd upon the *514notes after levy might have an important bearing upon the fact of ownership. But dеfendant’s counsel at the time might have observed said indorsement, but been wholly ignorant of when it was placed thereon,, and have no particular reason to investigate as to whether it was thus tampered with or manufactured evidence. In fact, knowing the notes to be paid by the maker and produced as proof in this collateral action,, he would have been justified ordinarily in assuming that all these indorsements were upon the notes before they were paid; and especially is this so under the testimony of both Seymour and Irwin that the notes, were transferred years before to the former. Perhaps due diligence might have discovered when the indorsement was made, and perhaps, not. There is sufficient doubt upon that question to leave undisturbed the finding of the trial court that due diligence was used.

There is much bitterness manifested between counsel, who have evidently taken the trial of this case as a matter personal to them. The-briefs are full of charges and innuendoes, all of which is as unnecessary as it is unjustifiable. It should Be said that, if any alteration of indorsements is shown, and it is very doubtful if the proof by inference largely is sufficient to establish alteration of indorsements over the positive proof to the contrary, no inference is made in this opinion that it was-done by or with the knowledge of plaintiff’s counsel. But as the tidal court, familiar with all the proof, has found, the same sufficient to warrant its submission to the jury with all the other facts in the case, we-hesitate to declare it was an abuse of discretion so to do. Nevertheless the action of the trial court in granting new trial was the exercise of' its discretion in defendant’s favor to an extreme, and borders closely on the dividing line between sound exercise of discretion аnd an abuse-thereof. Yet the issue is not altogether so clear as to warrant an appellate court in declaring it an abuse of discretion to grant a new trial. Had the discretion been exercised the other way, its order would likewise have been affirmed. The order appealed from is affirmed.