158 Ind. 370 | Ind. | 1902
Appellant instituted this action under §572 Burns 1901, §563 Horner 1901, by a complaint, to obtain a new trial on the ground of new evidence discovered after the term at which the final judgment in the main action was rendered, and within one year from said date. A demurrer to the complaint was sustained for insufficiency of facts, and judgment was rendered against appellant on de
It is disclosed that the evidence which Roher and Carroll proposed to give relates to the construction of the well and the character of its casing; that the pipe in question did not extend into the rock. These alleged facts, it seems, were ascertained by these witnesses some time after the trial, when engaged, at the instance of appellant, in drawing or taking out the casing. It is disclosed that after the trial, in order to determine the true condition or character of the casing, and also for the purpose of ascertaining whether the
In regard to the witness Vawter, it appears that be assisted the appellee in drilling the well, and what is proposed to be shown by him are matters with which he was familiar at the former trial. He was a witness at the trial, and testified in behalf of appellee, and was fully cross-examined by appellant. In respect to this witness the complaint alleges that be “did not know and could not have known by due diligence on the former trial that said Vawter would testify to said facts, as be was the defendant’s witness, and this plaintiff believed be bad testified to all the facts be knew relating to said well; that this plaintiff did not know at the time of the trial of said cause that be could prove the same by him.”
It has been repeatedly affirmed by the decisions of this court that the law unfavorably regards an attempt to’ reopen a case on the ground of newly discovered evidence, and under no circumstance in such cases will the court grant a new trial unless the applicant clearly and unequivocally, both in bis pleading and in bis proof, shows that be exercised due diligence in his efforts to procure, at the first trial,
Ruled by the principles asserted and enforced in the cases cited, and the complaint before us must be held bad for the reason alone that it does not sufficiently show that appellant exercised such a degree of diligence in endeavoring to secure the evidence before the former trial as the law exacts. In respect to the witness Vawter, it appears that he assisted appellee in constructing the well, and testified in his behalf at the former trial, and was cross-examined by appellant. Certainly a diligent person, under the circumstances, would have inquired of him what he knew about the controverted facts relating to the casing of the well, the depth to which the latter had been drilled, and as to whether rock had been penetrated by the drill, and, in general, all which was germane to appellant’s defense. This, it appears, he neglected to do, although the opportunity for such inquiry was fully presented. The mere fact that he neglected to make the examination before the trial which he thereafter made, in regard to the casing or pipes, and the manner in which the well had been constructed, for the reason that some well drillers had informed him that the casing could not be drawn, certainly, under the circumstances, can not be accepted as sufficiently excusing the absence of diligence in not making the examination before the trial, and thereby discovering the evidence in question. Without considering the question as to whether the proposed evidence is merely cumulative, and what its probable effect would be in chang
Judgment affirmed.