72 P. 777 | Kan. | 1903
The opinion of the court was delivered by
At Wichita, on the evening of October 26, 1897, T. J. Gaston attempted to purchase a ticket to Liberty, Kan., by way of the St. Louis & San Francisco (or “Frisco”) railroad. The agent, who was
Various rulings are assigned as error, including the
The importance of this evidence under the circumstances, and in the absence of any explanation or contradiction's too obvious to require extended comment. The entire case of the plaintiff, so far as concerns the large amount of damages awarded him, depends upon the proposition that he was suffering from a permanent lung trouble occasioned by, and dating from, his exposure on the night of October 26, 1897. This is a matter upon which it is evident that it would be difficult for defendant to procure any evidence, whatever the facts might be. Plaintiff’s own written statement of his condition made two months later, and after this action was brought, while of course not conclusive, against him, is evidence so pertinent and weighty that defendant’s application for a new trial, in order that the judgment of a jury may be had upon it, comes with great force if it is made in due time and in a proper manner; and while the statements of
Within three days after the verdict, and at the same term of court, defendant filed a motion for a new trial. One of the grounds set out in this motion was newly-discovered evidence, but the character of such evidence was not indicated, nor was the motion verified. This motion was argued some weeks later, but not decided. Several months afterward, and at a subsequent term of court, defendant filed a paper designated as a supplemental motion for a new trial, which was verified and included the matter already described. The district court overruled each motion separately. It is urged by defendant in error that the later motion could not be considered on its merits because filed after the term had ended, and it is argued that -under the several sections of the code affecting the matter a new trial on account of newly-discovered evidence can only be granted on motion when the application is made at the same term of court at which the verdict was rendered, and that after the expiration of such term the application can only be made by petition. In Schallehn v. Hibbard, 64
It is not necessary to decide this question however for there is another aspect of the matter under which the defendant was entitled to have the effect of the. newly-discovered evidence passed on. The verified supplemental motion may be considered as an affidavit in support of the motion previously filed. This is what it was in fact, and the name by which it is designated is not material, so that it is not misleading. While it was described as a motion and not merely as an affidavit in support of a motion, its designation as a “supplemental” motion connected it with the motion already on file. Although that motion had been argued it had not been decided. A copy of the affi
The statute does not require a motion for a new trial on the ground of newly-discovered evidence to. be verified or-to be supported by affidavits filed at the time. In Werner v. Edmiston, 24 Kan. 147, 150, it was said:
“Certain of the grounds for a new trial must be sustained by affidavit. (Code, § 309.) The fact that a motion is filed including those grounds is notice to the opposite party that affidavits sustaining them will be offered. And a party making a motion is under no obligation to disclose the testimony he may have to offer on the hearing thereof.”
In that case the motion for a new trial was not verified, and named newly-discovered evidence as one of its grounds, without indicating the nature of the evidence. At the hearing of the motion an affidavit was -offered in support of the motion, b.ut the court refused to receive it on the grouqd that it had not been filed with the motion for a new trial and had not been on file a reasonable time before the hearing. It appeared that the adverse party had had no notice of the filing •of the affidavit until after the motion for a new trial was called up for decision. This court held that the rejection of the affidavit was error and ordered the granting of a new trial. In the present case the fact that the affidavit was not presented until after the motion had been argued would be important if the court had refused to consider it on that ground. But although the plaintiff was served with a copy of it the record shows no motion to strike it out or objection to its consideration as evidence or otherwise. The fact that the district court overruled the motion rather
If it were not for the peculiar character of the newly-discovered evidence alleged, the showing of the defendant would be subject to just criticism on the ground of a failure to establish due diligence and to disclose the names of the witnesses by whom it was expected to prove the new matter. But the fact that the plaintiff had made an application for life insurance after the commencement of the action, and the circumstances accompanying it, so obviously lay outside the line of ordinary inquiry that it is difficult to conceive what specific allegations in support of diligence could be expected from defendant other than that of actual want of notice. (Railway Co. v. Lovelace, 57 Kan. 195, 45 Pac. 590.) The importance of the new evidence here alleged lies in the very fact of its documentary character. The setting out of the-writings in full advised plaintiff as to what he must expect to meet. It is of little consequence by whom their authenticity might be sought to be established. The witnesses, in the sense in which it is incumbent upon an applicant for a new trial to disclose them, are the writings themselves. (Building Assn. v. McMullen, 59 Kan. 493, 53 Pac. 481.)
We'conclude that the overruling of the motion for a new trial on the ' ground of newly-discovered evT dence was error. The oiher matters -argued-' 'turn
The judgment is reversed, with directions to grant a new trial.