100 Neb. 284 | Neb. | 1916
The district court for Johnson county entered judgment pursuant to the decision of this court in Goodman v. Smith, 94 Neb. 227, and thereupon the defendants at the
The original action was in equity, and under the statute this court is required to try such actions de novo without reference to the findings of the trial court. For this reason, it is contended that the district court had no jurisdiction to grant a new trial for any reason, as the judgment of that court had been reversed by this court and a new judgment entered pursuant to the findings and judgment of this court. It is .said that, this court having directed specifically what judgment should' be entered in the district court, this court alone would have jurisdiction to entertain a motion for a new trial. Appeal to this court from a judgment in an action does not deprive the district court of jurisdiction to grant a new trial of that action. Hellman v. Adler & Sons Clothing Co., 60 Neb. 580. This practice has been frequently recognized by this court. We do not think that this objection is well taken. While this court upon appeal tries equity causes de novo, it tries them wholly upon the record presented and the evidence taken in the trial court, and determines what judgment should have been entered by the lower court. The judgment directed by this court is predicated upon the evidence already, taken, and if that judgment is induced by perjury in the record, or if new evidence is discovered of such a nature as would require the district court to grant a new trial in ordinary cases of judgment in that court, there seems to be no reason why the district court might not entertain jurisdiction in the one case as well as in the other.
The petition demurred to is very elaborate. It sets out in full the pleadings in the original action, and then alleges at large the grounds relied upon for a new trial by the defendants in the original case, who are the plaintiffs in this case. The petition for a new trial under the statutes must shoAV that the grounds alleged could not, with reasonable diligence, have been discovered during the term in which the verdict was entered or decision made. The alleged newly discovered evidence must relate to the issues joined in the original case, and the petition for a new trial must set out the newly discovered evidence and show how it is related to the issues presented. The evidence must be material, and not merely cumulative; that is, it must be of such a substantial nature as to make it appear that, if such evidence had been received in the
It will be remembered that after the death of ’Thomas Phippin, Mrs. Goodman’s father, her mother became the wife of one Worthy Luce, who at the time of his death, shortly before the original action was begun, held the legal title to the property in question. After his death his children by his marriage with Mrs. Phippin, Mrs. Goodman’s mother, claimed all of the property as the heirs of Worthy Luce, and Mrs. Goodman began the original action to establish an interest in the property as the heir of her father, Thomas Phippin.
A vital question in the original case was whether Thomas Phippin, Mrs. Goodman’s father, did, in his lifetime, purchase the 40 acres of land in Wisconsin and pay for the same. The petition alleges that, before the trial of the original case in the district court, these petitioners, as defenders in that case, “employed competent legal counsel and made diligent efforts to secure proper evidence to establish the facts in said action under the issues therein, and as defendants alleged them to be in their said answer and cross-petition.” They name a well-known and able counsellor of this court as the attorney so employed, and allege that he made the most thorough and careful investigation of all the evidence, including • the known witnesses and the public records from which any evidence could be obtained, and that they made use of the evidence so obtained upon the original trial. They allege that one of the plaintiffs, who was a defendant in the original action, “made a trip to the state of Wisconsin and made diligent inquiries among the former neighbors, friends and acquaintances of said Thomas Phippin and said Worthy Luce, and caused the public records in Waukesha and Milwaukee counties in said state to be examined in search of proofs in support of the allegations in said defendants’ answer and cross-petition, and also made diligent inquiries, from all those then living who seemed to be liable to have any knowledge upon said sub
Records showing that the title to the Wisconsin land was never in the name of Thomas Phippin is not new evidence. It appeared upon the former trial that no deed was made until after the death of Phippin, and the-deed was then made to his wife, the mother of Mrs. Goodman. That the mother of Mrs. Goodman had possession of the land and exercised acts of ownership over it at and before her marriage with Worthy Luce is not material evidence, and is not inconsistent with the evidence upon the former trial.
Upon the former trial Mrs. Goodman testified that she never knew that her interest in these lands was denied, or that the title was not held in trust for her under mutual understanding by all parties interested, until very shortly before her action was begun in the district court. This evidence was very important to take her action out of the statute of limitations, and was apparently
It appears from the petition that this plaintiff, Luvina Smith, “resided in the state of Indiana during all the time that Worthy Luce lived in Johnson county,” and that “George Luce and Mary Luce did not reside with Worthy Luce, and had no means of knowing * * * what the facts were in regard to the ownership” or the sale of the Wisconsin land or the investment of the proceeds thereof, and, as suggested in the former opinion, Mrs. Goodman and her mother and stepfather had no quarrels, and apparently had complete understanding of their business matters, and now, after the death of all the parties directly interested, these heirs of Worthy Luce, relying upon the fact that the parties interested in the property allowed the title to remain in the • name of Worthy Luce, and that they would inherit directly from him, while Mrs. Goodman does not, attempt to deprive Mrs. Goodman and her heirs of Mrs. Goodman’s interest in the property. The law does not favor new trials because of alleged newly discovered evidence after all the parties interested in the judgment already entered have' died; and in all cases those who seek for another trial upon such grounds are required to make strict and satisfactory proof that new evidence has been discovered that could not have been found before the original trial by due diligence, and that such evidence is of such a character that the court can see from the proposed evidence itself and the nature of the case that if it had been introduced upon the former trial a different judgment would probably have been entered. It may be that if another trial is had these plaintiffs would be able to defend against the claims of Mrs. Goodman so as to require a judgment in their favor, but the allegations of this petition are not such as to require this court to hold that the trial court abused its discretion in sustaining the demurrer and dismissing the petition.
The judgment of the district court is
Affirmed.