Smith v. Smith, 51 Wis. 665

Smith v. Smith

51 Wis. 665 | Wis. | 1881

Cassoday, J.

This motion was in time. The statute, among other things, provides that a motion for a new trial, founded upon newly discovered evidence, may be made and heard at any time within one year from the finding, without a bill of *668exceptions, upon affidavits, and the papers in the action, and a transcribed copy of the phonographic reporter’s minutes. Section 2879, R. S. The moving papers were sufficient in form under this statute. Were they sufficient in substance? The statutes give to the circuit court a “discretion” in the granting or refusing of such motions. Section 2832, R. S. The circuit court being authorized by the statutes to exercise its discretion in granting the motion, this court will not interfere unless there has been a manifest abuse of such discretion. Moll v. Semler, 32 Wis., 228; Seymour v. Sup'rs of Chippewa Co., 40 Wis., 62; State ex rel. v. Hoeflinger, 33 Wis., 594; Hanson v. Michelson, 19 Wis., 498; Lewellen v. Williams, 14 Wis., 687. It is urged upon the part of the defendants, that the newly discovered evidence would merely tend to impeach the evidence given upon the trial. It seems to us, however, that it goes much further. The real question was, whether Holmes executed the deed knowing its contents, or it was an imposition. If he actually read the deed, then he certainly knew its contents. The evidence tending to show that he did not read the deed was, at most, merely inferential. His capacity to read at the time does not seem to have been questioned, much less considered. If it is true, therefore, that for a year or so prior to his deatli he did not have capacity to read, then it would conclusively follow that he did not read, and that the evidence to the contrary must have been untrue. As to whether it was or was not untrue, we are not called upon to consider, but merely to consider the nature and materiality of the alleged newly discovered evidence. It seems to us that it is a new class of evidence, bearing directly upon the question at issue. Nor can we sajr that the plaintiff failed to show sufficient diligence. Just how long the old gentleman’s eye-sight had been impaired does not appear, but it would seem to have been only a year or two. He seems to have been able to be out walking on the streets, and it would not be strange if there were many in the neighborhood who did not *669know the fact that he was unable to read. The plaintiff’s affidavit is to the effect that he discovered the new evidence since the trial, and did not know of it at or before the trial. A new trial can work no substantial injury to any one, and a refusal to grant it might possibly have worked a serious injury. From our examination of the record we are led to the conclusion that the granting of a new trial in this case was a proper exercise of judicial discretion. It may be that the circuit court should have imposed upon the moving party the payment of costs as a condition precedent, instead of leaving them to abide the event of the suit; but under the peculiar circumstances of this case we are not prepared to say that the omission of such condition was an abuse of discretion.

By the Court.— The order of the circuit court is affirmed.