30 Mont. 30 | Mont. | 1904
prepared the following opinion for the court:
This action was commenced in the justice court to recover the sum of $50 alleged to have been theretofore loaned by plaintiff to defendant. The defendant made general denial. Verdict
It appears from the record that the plaintiff and his wife had been employed by the firm of Shook & Hinchman, and had been paid a certain compensation; that plaintiff had borrowed a sum of money from the firm, which he had afterwards repaid. Plaintiff claims also that he had some money, derived from other sources, at the time he made the alleged loan to defendant.
It is fundamental that the moving party must show by his own affidavit that the new evidence was not known to him at the time of the trial. TJpon that question the affidavits of other
It is a general rule that, before a new trial will be granted on the ground of newly discovered evidence, cumulative or impeaching, it must be made to appear affirmatively that the new evidence would probably be sufficient to change the verdict and produce a different result. (Hayne, New Trial, par. 90; Huster v. Wynn, supra; Leyson v. Davis, 17 Mont. 220, 42 Pac. 755, 31 L. R. A. 429; Springer v. Schultz, 105 Ill. App. 544; Francisco v. Benepe, 6 Mont. 243, 11 Pac. 637. See, also, Baxter v. Hamilton, 20 Mont. 327, 51 Pac. 265; State v. Brooks, 23 Mont. 147, 57 Pac. 1038.)
Statutes similar to Section 1171 of our Code of Civil Procedure have been so construed. (Oberlander v. Fixen & Co., 129 Cal. 690, 62 Pac. 254.)
“The additional evidence to afford opportunity for the introduction of which a new! trial is sought, must be newly disicovered, by which expression is meant that it must have been discovered since the trial. If discovered before or at the trial, and no continuance of the tidal was applied for, an answer to the motion that no diligence is shown will be sufficient to defeat it, no matter what else may be shown.” (1 Spelling, New Trial, supra; Curran v. A. H. Stange Co., 98 Wis. 598, 74 N. W. 377.)
It appears from the record that nine affidavits relative to the alleged statements made by plaintiff at the former trial were read and used in support of the motion for a new trial, and the court did not err in refusing to extend the time in order to enable the defendant to secure additional affidavits on that point, even if the application for such extension had been made within the time required by. Section 1173, Code of Civil Procedure, as that section is construed in Wright v. Mathews, 28 Mont. 442, 72 Pac. 820, and State ex rel. Stromberg-Mullins Co. v. Second Judicial District Court, 28 Mont. 123, 72 Pac. 412.
For the reasons stated in the foregoing opinion, the judgment and order are affirmed.