57 Tex. 171 | Tex. | 1882
The only question which it is proposed to consider is, Did the court err in overruling the application for a new trial? The other errors assigned by appellant are not regarded as showing any ground for reversal, or as presenting any questions requiring discussion.
The result of appellant’s efforts immediately after the trial shows that the testimony which he then obtained as to the whereabouts of Mahan in the fall of 1844, might have been discovered and obtained before the trial. Clearly the appellant was inexcusable for failing to produce this testimony on the trial, if the issue as to where Mahan actually was in September, 1844, was one on which he was bound to be prepared on the trial. By the affidavit of Mrs. Mahan, impeaching the genuineness of the deed of September 3, 1844, from Mahan to Cavenaugh, appellant was notified of the necessity of proving its execution, and by the cross-interrogatory propounded to the witnesses whose depositions he took to prove the handwriting of Thompson, the wdtness to the instrument,, and the officer before whom it was acknowledged, of Mahan, the maker, and that the body of the instrument was in the handwriting of Cavenaugh, the grantee, he
The reason of the rule forbidding a new trial for the purpose of admitting cumulative testimony does not apply where the party has had no fair opportunity to procure and adduce evidence on an issue raised by his adversary for the first time, during the trial, by the introduction of evidence which could not be anticipated. The reason of the rule is that public policy, looking to the finality of trials, requires that parties be held to diligence in preparing their cases, and that they shall not be allowed a second trial because they mistook the amount of testimony requisite. Powell v. Jones, 42 Barb., 30. But the policy 'which seeks to limit continued litigation does not apply where a party has had no fair opportunity to present his side of the case — no real day in court. In discussing this subject, Chief Justice Wheeler said: “It is desirable that there should be an end of litigation with as little delay and expense as possible, consistently with the great end of litigation — a correct decision of causes according to their real merits; but it should always be sought in subordination to the great end to be attained.” Mitchell v. Bass, 26 Tex., 377. In the same opinion he also said: “ Where there can be any doubt of the justice of the verdict to refuse a new trial, when the party has really discovered new evidence of a conclusive tendency, would be against justice and precedent.”
In the conflict of evidence, the justice of the verdict in this case is at least doubtful; and as the additional evidence sought to be adduced is evidence which the appellant is excusable for not having produced on the former trial, and is evidence bearing directly on a material issue, and which might probably lead to a different verdict, we think that the new trial should have been granted. R’y Co. v. Forsyth, 49 Tex., 178.
Because the court erred in refusing a new trial, the judgment is reversed and the cause remanded.
Revebsed and remanded.
[Opinion delivered May 5, 1882.]