172 N.W. 875 | S.D. | 1919
This action was brought -to foreclose a mortgage on 200 acres of land in Minnehaha county. The execution of the mortgage and the indebtedness the mortgage was given to secure are admitted, but the defendants claim that there was a material alteration made in the mortgage after its execution and without the knowledge or consent of the mortgagors, and that, therefore, the mortgage was wholly void, and they ask judgment dismissing the action.
The mortgage, as it appeared at the commencement of the action, purported to be a mortgage on the whole of the 200 acres of land described therein, while defendants claim that, when the mortgage was executed, it purported to be a mortgage on only an undivided one-fourth interest in said land. Upon this issue the trial court' found that, at the time of the execution of the note that was to be secured by the mortgage, the defendants agreed to execute and'deliver to the payee of the note a mort
In view of the above circumstances, it cannot be said that appellant or its counsel was guilty of any lack of diligence in failing to have this witness present at the trial. After having told both parties that she had no recollection of the matters involved, it would, have been folly to have subpoenaed her and put her upon the witness stand. 'Had she been present at the trial and testified to the matters stated in the affidavit, her testimony might have led the court to a different conclusion; but it does not neces
• “If a defeated litigant could obtain a second trial upon the ground of newly discovered evidence without a strong, clear, and satisfactory showing of diligence, of the materiality of the evidence, and of the probability that it would change the result, there would be a temptation to great wrongs, and such a procedure would lead to grave abuses. Applications based upon these grounds are looked upon with much disfavor and entercained with great reluctance.”
And, quoting from Moore v. Bank, 5 Serg. & R. (Pa.) 41, the court further said:
“Motions of this kind, ought to be received with great cau*102 tion, because there are few cases tried in which something new may not be hunted up, and because it tends very much .to the-introduction of perjury to admit new evidence after the party who .has lost the verdict has had an opportunity of discovering the points both of-his adversary’s strength and his own weakness.”
And, again, quoting- from Baker v. Joseph, 16 'Cal. 173, this court said:
“Applications for this cause are regarded with distrust and disfavor; The temptations are so strong to make a favorable showing, after a defeat in an angry and bitter controversy involving- considerable interests, and the circumstance that testimony has just been discovered, when it is too late to introduce it, so suspicious, that courts require the very strictest showing to be made of diligence and all other facts necessary to give effect to the claim.”
The rule as above announced has, been strictly adhered to throughout a long line of decisions by this court. Gaines v. White (on rehearing) 2 S. D. 410, 50 N. W. 901; Scheffer et al. v. Corson _et al., 5 S. D. 233, 58 N. W. 555; Axion Min. Co. v. White, 10 S. D. 198, 72 N. W. 462; Wilson v. Seaman, 15 S. D. 103, 87 N. W. 577; State v. Southmayd, 37 S. p. 375, 158 N. W. 404; McKirahan v. Gold King Min. Co., 39 S. D. 535, 165 N. W. 542.
The above rule would not necessarily apply with the same force if the case ‘were triable to a jury, because the jury would •then be the judg-e of the credibility of the witnesses; and a jury that heard the testimony of Mabel Nelson might ver}<- well reach a conclusion different from that arrived at b)' a jury that did not hear such -testimony.
There was no error in denying the motion for a new trial, and the judgment and order appealed from are affirmed; but • nothing said in this opinion is intended to affect defendants’ liability on the note secured by the mortgage.