24 Neb. 545 | Neb. | 1888
This is a proceeding in error to the district court of Gage county. The petition was filed in that court, under
Upon the trial to the district court, the former judgment was set aside and a new trial granted. From this decision plaintiff brings the case to this court by proceedings in error, for review.'
Since in ejectment cases it is the well-settled law that the plaintiff must recover upon the strength of his own title and not upon the weakness of that of his adversary, it is quite apparent that the testimony claimed to have been discovered would have been material upon the trial, and if true it might exert an important influence upon the case. It appears from the evidence of Miller that, at the time he executed the deed to plaintiff in error, he did so upon the belief that it was for the benefit of the equitable owner and occupant of the land, who he supposed to be holding under the deed which he had formerly executed to Gilchrist, and that plaintiff in error had sufficient knowledge to put him upon inquiry which would have led to the information that Miller claimed no interest in the real estate. It is shown by the petition and evidence that defendant in error, upon ascertaining the residence of Mrs. Gilchrist, had procured a deed from her to himself, and had placed upon record the deed executed to her by Miller, as well as the deed executed by her to himself. But Ave think this part of the ease is unimportant, so far as this examination is concerned, as he acquired that title after the original trial. The principal questions submitted to
In Jones v. Singleton, 45 Cal., 94, the supreme court of California, in a somewhat similar case, says : “ Diligence, or the want of it, in a particular case, depends in so great a degree upon the various circumstances surrounding the parties and the conduct of the cause, which are peculiarly within the knoAvledge of the trial court, that its determination, made in view of them, would rarely be interfered with by us.”
By the granting of a new trial another opportunity is offered for a full and fair investigation of the rights of the parties, but where a new trial has been refused, it completely closes the door to further investigation and puts an end to the litigation. An appellate court will, therefore, scrutinize much more closely an order of the trial court refusing a neAV trial than it will where such new trial is granted.
In White v. Poorman, 24 Ia., 108, it is said that where a new trial is granted for the recovery of real property, and it does not appear that the negligence of the unsuccessful parties or their attorneys produced the result, although they may not have been without blame in that particular, the supreme court will not reverse such order
There was sufficient evidence adduced upon the trial to-justify the district court in finding, for the purpose of this-action, that, so far as the records of Gage county afforded any light, Mr. Miller was the owner of the legal title to-the property, and that he had never conveyed it; that he was a stranger to defendant in error; that his residence-was unknown; and that there was nothing which would lead defendant to believe otherwise than that Miller had conveyed the land which he held. This would be a natural belief, since by section 127 of our criminal code it is made-a felony for a person to intentionally sell or convey real estate without having a title to the same, where such conveyance is made with intent to defraud. There could be-no presumption that Miller, if within this state at the time-of the sale of the property to plaintiff in error, had violated the law; the court could therefore find that there-was no such want of diligence on the part of defendant in error as would deprive him of a new trial. The finding of' the district court or the affirmation of such finding by this court can in no way affect the rights of the parties upon the future trial, but extends only to the exercise of that discretion which is vested in the district court, of granting new trials in furtherance of justice upon such evidence as-may be produced thereon.
The judgment of the district court is affirmed.
Judgment aenirmed,.