161 P. 50 | Utah | 1916
Lead Opinion
The plaintiff alleged in her complaint that the defendant was “engaged in the business of a savings bank at Ogden, Utah”; that plaintiff formerly was the wife of one J. J. Turner and that she then “bore the name of Louise Turner”; that on December 29, 1908, in the name of Louise Turner, 'she deposited with the defendant bank the sum of $4,400, upon which sum the defendant agreed to pay interest at the rate of four per cent, per annum compounded semi-annually; that
We have set forth the substance of the pleadings to show both the nature of the action and the character of the defense. The plaintiff thus alleged that she had deposited a certain sum of money with the defendant bank, which it refused to pay to her. The defendant, while not admitting that plaintiff had deposited the amount alleged, and while not admitting any specific amount, nevertheless admitted that ‘ ‘ certain moneys” had been deposited for the credit of the plaintiff. Defendant, however, averred that all the money that was deposited had, “upon the order of plaintiff,” been withdrawn from the bank. The issues were thus quite narrow.
At the trial practically the whole question hinged upon the genuineness of plaintiff’s signatures to the cheeks that were drawn against the deposit, and the authority of her husband to withdraw her money from the bank. It was made to appear that a large portion of the money that was deposited by the plaintiff had been withdrawn upon checks purporting to have been drawn and signed by plaintiff. The plaintiff, however, contended at the trial, and here insists,
As before stated, however, the principal question for determination at the trial was whether the signatures to the checks were genuine or were forgeries. Both sides having presented their evidence upon that question, the court submitted the case to the jury upon instructions as to the law, of which no complaint is made. The plaintiff, however, vigorously contends that the court failed to exercise, or had abused, its discretion in refusing to grant her a new trial upon the ground of newly discovered evidence. Upon the other hand, the defendant insists that the court’s rulings were right for the; reasons: (1) That the alleged newly discovered evidence was merely cumulative; and (2) that plaintiff did not exercise due, or any, diligence to obtain and produce said alleged newly discovered evidence at the trial.
While the facts in the several affidavits in support of the motion for a new trial are stated with much gre.ater particularity and detail, and while there are certain affidavits filed by some of the jurors, showing that they deliberated at least twenty-four hours, and which show some facts in impeachment of
The ground or grounds upon which the district court based its ruling in denying the motion does not appear. Defendant’s counsel, however, defend the ruling upon the grounds that the alleged newly discovered evidence is cumulative merely, and that plaintiff’s counsel have failed to show that they exercised due or any diligence to procure said evidence at the trial. Plaintiff’s counsel, at least tacitly, concede that the alleged newly discovered evidence is, in one sense, merely cumulative. They, however, insist that it is of such a demonstrative character that a mere examination or inspection thereof produces a very strong conviction in the minds of the expert and layman alike, and especially in the mind of a layman, that a different result in all probability will be reached in case a jury of laymen are permitted to consider and pass upon said evidence. They further contend that in the modern decisions a more liberal rule has been adopted in granting new trials upon the ground of cumulative evidence of a particular type or character, in case there is no lack of diligence on the part of the party producing such evidence, than in the older cases.
“The rule that newly discovered evidence must not he cumulative, though well settled, has an occasional exception. Where, by admitting it, what was before mysterious and doubtful becomes plain and certain, so that, if received, the most obvious justice, and, if re*613 jected, the most palpable injustice, will be done, courts do not hesitate to adopt the former alternative.” (Italics ours.)
See also, Wall v. Trainor, 16 Nev. 131, where the foregoing language is quoted. As we shall see from the quotations which follow many of the courts have adopted a somewhat less stringent rule. In 3 Enc. Ev. 944, it is said:
“In a few cases it has been distinctly announced that a new trial will never he granted for newly discovered cumulative evidence. But if such was ever the general rule (the facts of very few cases requiring the application of so stringent a rule), it may he said that the general trend of modern authority is favorable to the granting of new trials where the newly discovered cumulative evidence is of a controlling or decisive character, or even where it is such as to render a change in the result fairly probable.”
In Waller v. Graves, 20 Conn. 310, Mr. Chief Justice Church states the exception to the general rule that a new trial will not be granted upon cumulative evidence thus:
“So, if the evidence now claimed to be newly discovered, is merely cumulative evidence, we cannot grant a new trial, unless the effect of it will be to render clear and positive that which was before equivocal and uncertain.” (Italics ours.)
In 29 Cye. 916, 917, after stating the old rule that new trials were seldom, if ever, granted on cumulative evidence;, it is said:
“A new trial may now be allowed, in some jurisdictions, for newly discovered cumulative evidence which, taken in connection with the evidence adduced at the trial, is sufficient to render a different verdict necessary, or highly probable, or probable, as the general rule for newly discovered evidence may be in the particular jurisdiction, or which will render clear what was doubtful at the trial; the character of the evidence affecting its weight only.”
The rule just stated is the one adopted in Oberlander v. Fixen & Co., 129 Cal. 690, 62 Pac. 254, and in Keeler v. Jacobs, 87 Wis. 551, 58 N. W. 1107, and eases cited in the two cases just referred to.
If it were not for the conceded conduct of the defendant and its counsel in refusing plaintiff, her counsel and witness possession and inspection of the checks in question, it would be clearly our duty to approve the ruling and judgment of the court below. When we come to consider the conduct of the defendant and its counsel in the premises, however, plaintiff’s case assumes a different aspect.
“But further than this, there is ground for holding that it is also a duty of the hank at common law to return his paid cheeks to the depositor. He is considered to have the better right to them, for they are regarded as his evidence of payment of his debt to the payee named in them. The bank is said to hold them only as his agent.”
“You were not diligent. You should have gone into court and coerced us to grant you possession and inspection of your eheeks. ’ ’
' To hold that counsel' may successfully take and defend such a position upon an application of this kind is tantamount to placing a premium upon efforts to withhold evidence from the adversary to which he is clearly entitled'. While counsel in no case and under no circumstances can be required to point out or to furnish evidence to the adversary,'
Concurrence Opinion
I concur in the order reversing the judg-