12 W. Va. 23 | W. Va. | 1877
delivered the opinion of the Court:
The question raised by this record is : When should a court of equity interfere with a judgment at law, by awarding a new trial of the matters in controversy because of newly discovered evidence. It is admitted that after-discovered evidence, to afford a proper ground fo
There is sometimes some difficulty in applying these admitted rules; but there is no difficult)'' in this case. The evidence brought forward now as a ground .for granting a new trial, while it was discovered after the former trial, is not such as by reasonable diligence the defendant could not have secured at the former trial; it is not material in its object; and it is not such as ought to produce a different result at the trial upon its merits. The complainant alleges in his bill: “that he used all diligence before and after the commencement of the trial, in order to find out if Kuykendall had admitted the execution of said obligation to any one after the date of its execution, or had admitted he owed him the debt.” The proof however offered by himself, not only fails to prove this allegation, but proves the reverse.
The plaintiff, in his deposition, proves that before the trial, “he understood that Kuykendall.and the plaintiff’s witness, Starkey, had done a good deal of business together, and he asked him whether he would know Kuy-kendall’s handwriting if he saw it;” he accordingly summoned him as a witness to prove Kuykendall’s handwriting, and he attended the trial as a witness for that purpose. Yet he failed to ask him if Kuykendall ever admitted to him that he owed this debt. He says he tried with diligence to ascertain whether Kuykendall ever made such admission; but he neither proves by
Again' — The evidence of this witness, Starkey, is not such as ought to have produced an opposite result, had the complainant examined him. So far is it from being evidence of this character, it does not amount to material, or even pertinent evidence upon the issues tried by the jury. If it had been offered at the trial, the court ought to have excluded it from the jury, §is having no tendency to prove either that Kuykendall executed the obligation sued on, or that he had received any consideration therefor from Zickefoose. He says that about a month before this obligation became due, Kuykendall told him he would not lend him money, “as he had to pay Zickefoose some money, and he had received a letter from him that he wanted the money. Does this loose statement even tend to prove that he had executed a bond to Zickefoose for $435.00 payable some thirty days after this conversation?” Can it reasonably be regarded as having any reference to the debt, or alleged debt of $435.00, not due for near thirty days? The witness does not say how much money he wanted to borrow, nor did Kuykendall say how much money he owed Zickefoose. It might have been some trifling amount arising out of some other transaction. There is nothing whatever to connect it with the subject matter of controversy before the jury, and while, before it could properly be even admitted to go to the jury, it was incumbent on Zickefoose to show
I have thus far regarded the statement of this witness as worthy of confidence. But there is in the record much that would weaken his testimony, and which would have renderedit improper to have awarded a new trial, even if it had been much more material. This witness is directly contradicted by the complainant himself. In his deposition the complainant says expressly that this witness told him that William Walker was present at this conversation; while the witness himself says no one but Kuykendall was present. Again, the complainant says in his deposition that this witness told him that Kuykendall said he had this money to pay the first of May; the witness, on this very material point, in his deposition says, he does not recollect that he either mentioned the amount or the time it was to be paid. In the bill sworn to by the plaintiff, he says that this witness told him that Kuykendall said, “he was pressed for some money which was due Zickefoose about May 1, 1875, amounting to the sum of $435.00, which he must pay.” If he, Starkey, made such a statement ’to the complainant, it was in all probability untrue, as he made a very different statement when examined as a witness, and this would make it questionable whether even the statement made by him when examined as a witness was true.
The remaining question in this case is : Ought a new trial to be awarded, because Martin served on the jury ? It is admitted that, if the complainant or his counsel, either knew, or by the use of reasonable diligence ought to have known, the facts which it is now claimed rendered him incompetent as a juror, that this court ought not to reverse the court below and award a new trial. And this admission concludes the case, for it it obvious from the evidence that, if the complainant did not know these facts, he or at any rate his counsel could have known them by the use of the least possible diligence. The facts supposed to render him incompetent, were notorious facts known to the entire community necessarily. The only matter affecting his competency, which was not known to a large portion of the population of Harrisville, where this suit was heard, necessarily, from its character, was the intention with which the juror, Martin, moved west, and his intention when his family, and when he himself returned to Harrisville. This we have no reason to believe, he kept secret. But this intention might have been unknown to the complainant and his counsel. But knowing
The decree of thé circuit court of April 28, 1876, must be therefore affirmed, with costs and $30.00 damages.
Decree Affirmed.