32 Gratt. 140 | Va. | 1879
delivered the opinion of the court.
The bill in this case is filed by the appellee, George W. Alderson, to enjoin all further proceedings on a judgment rendered in the county court of Washington county against
The bill further alleges that after the trial and judgment in the suit at law, he had discovered evidence not only material but absolutely conclusive of his case; that of this evidence he had no knowledge, and only accidentally discovered the same since the trial. The bill further sets forth the character of the newly discovered evidence, and gives the names of the witnesses, and the facts he expects to prove by each of them.
To this bill the executors of Berry St. John were made parties, and an injunction was awarded accordingly, restraining all further proceedings upon said judgment.
The executors answered the bill. They do not deny that the debt had been paid to Heiskill the sheriff (for the receipt of Heiskill for the debt is filed with the bill)—but deny that it was ever paid over to their testator. They insist that the issue made up in the suit at law was, whether the money paid to Heiskill (who had no authority to receive it), was ever paid over to their testator; that witnesses
The circuit court held that the plaintiff in the injunction suit (the defendant in the suit at law, and appellee here) was entilled to a new trial, and accordingly directed an issue to be tried on the law side of the court, whether the debt of $261.20, with interest 'thereon from the 10th day of May, 1861, mentioned in the writing obligatory, commonly called a forthcoming bond, made by the plaintiff, George W. Alderson and James Fulcher and James L. Cole (his sureties), for the penalty of $522.40, to Campbell St. John, for the benefit of Berry St. John, dated 10th May, 1861, was paid to Berry St. John in his lifetime; and it was further ordered that the said George W. Aider-son be plaintiff in said issue.
Upon the trial of this issue the jury found the following verdict (which was certified to the chancery side of said circuit court): “We, the jury, find that the money was paid to Berry St. John.” Upon the verdict thus certified,, the circuit court, on the chancery side thereof, entered its decree, by which it was adjudged, ordered and decreed, “that the injuntion heretofore awarded in this court is made perpetual, and that the plaintiff recover against the defendants his costs in this behalf expended, including his costs of the trial of the issue heretofore directed, to be paid out of their testator’s assets; and the cause is stricken " from the docket.”
From this decree an appeal was awarded' by one of the judges of this court.
The court is of opinion that there is no error in the decree of the circuit court.
"With respect to granting new trials on the ground of newly discovered testimony, there are certain principles of law which must be considered settled.
1. The testimony must have been discovered since the former trial; 2. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial; 3. It must be material to the issue; 4. It must go to the merits of the case, and not to impeach the character of a former witness; 5. It must not be merely cumulative. The first four requisites above named are clearly met in the case before us, and the only question we have to determine is, was the newly discovered evidence merely cumulative? As to what constitutes cumulative evidence is a question of some nicety.
As was said by Judge Maury in Guyot v. Butts, 4 Wend. R. 579, “I find no.case in which a very distinct definition is given of cumulative evidence. The courts have sometimes used expressions seeming to warrant the inference that proof which goes to establish the same issue that the evidence on the first trial was introduced to establish is cumulative. If the evidence newly discovered, as well as that introduced on the trial, had a direct bearing on the issue, it may be cumulative. But we are not to look at the effect to be produced as furnishing a criterion by which all doubts in relation to this kind of evidence are to be settled. The hind and character of the facts mahe the description. It is their resemblance that makes them cumulative. The facts may tend to prove the same proposition, and yet be so dissimilar in hind as to afford no pretence for saying they are cumulative.”
Without adopting in full these views of the learned author, it is sufficient to say, that the case before us comes within the rule so clearly stated by Judge Maury (supra). The hind and character of the facts offered as newly discovered evidence make the true distinction. The facts offered may tend to prove the same issue, and yet be so dissimilar in kind as to afford no pretence for saying they are merely cumulative. Now, in the case before us, the issue on the trial at law, was whether the money paid by Alderson to Heiskell, sheriff, was paid over to St. John. Certainly there was evidence tending to show an admission by St. John, that the debt was paid.
But in the newly discovered evidence offered, a witness is produced to prove, and who does prove, that he saw St. John receive this money from Heiskell, sheriff, on account of the Alderson debt. This evidence, it is true, tends to prove the issue of payment, but is dissimilar in kind, and if true, is conclusive of the case. It cannot be said to be merely cumulative. It makes certain that which was uncertain.
It enables a jury to reach a conclusion which meets the demands of justice.
The court is therefore of opinion that there is no error in the decree of the circuit court, and that the same be affirmed.
Decree affirmed.