Zickefoose v. Kuykendall

Green, President, 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 — 30 — awarding a new trial, whether the application be made 'to a common law court, or to a court of equity, must (1st) have been discovered since the former trial; (2nd) be such as reasonable diligence on the part of the party seeking the new trial could not have secured at a former trial; (3d) be material in its object and not. mei’ely cumulative, corroborative or collateral; (4th) must be such as ought to produce an opposite result on the merits: Read’s case, 22 Gratt. 946 ; Adams v. Hubbard, 25 Gratt. 129; Slack v. Wood, 9 Gratt. 53; Brown v. Speyers, 20 Gratt. 296; Gillilan v. Ludington, 6 W. Va. 128 ; Arthur v. Chavis, 6 Rand. 142. 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 — 31 — himself, nor by any one else, that he ever made any inquiry on the subject. If he made any such inquiry,' would it not naturally have been made of his witness, Starkey, who he understood had done a good deal of business with Kuykendall. Yet he failed to make any such inquiry of him; nor does he pretend to offer any evidence to show he made such inquiry of any one. His attention being, as he admits, directed to the importance of making this inquiry, he was certainly guilty of negligence in not making it of a witness present at the trial, to whom such an admission would as likely to have been made as to any one else. 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 — 32 — ^ so me relation to this controversy, he not only, failed to do so, but what Kuykendall is alleged to have said, would seem to show that it could not have referred to this alleged debt of $435.00. For he stated that Zick-efoose had written him he wanted the money; the fair inference is that the money to which Kuykendall referred, was money then due to Zickefoose, and not money which would not become due for near thirty days. It seems to me that such evidence would be inadmissible; but if it should have been admitted if offered, it certainly was not such evidence as ought to have caused the jury to render a verdict for the plaintiff in that suit. It certainly.bore very remotely, if at all, upon the questions in controversy before the jury. 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. — 33 — Kuykendall in his answer on oatb says, there is not one word of truth in any part of his statement. In the case Arthur v. Chavis, 6 Rand. 147, Judge Carr uses this language: “The danger of fabrication is one of the strongest objections to granting these new trials for after-discovered evidence, especially when that evidence does not consist of written documents, but of viva voce testimony. On a trial at law all the strength and weakness of the case is disclosed. To suffer the loser, after thi,s to hunt up evidence and get a new trial on the bare statement that he did not know of it before, would be to. hold out a a strong and dangerous temptation to subornation of peijury ” The mischief such a practice is to some extent exemplified in this cass, but much more exemplified in the case in which Judge Carr uses this language. 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 — 34 — the fact that he had gone west, if either the complainant or his counsel had had any objection to his sitting on the jury, they could at the time of the forming of this jury, by the exercise of the least possible diligence have ascertained this intention. For they had but to ask the juror, when it would have been fully discovered. The attorney, who lived within one hundred yards of this juror and knew him well, must have known when he went west, and when he returned; and if he objected to his serving on the jury, because he had not been living in the county sufficiently long, or because his residence here was of a temporary character, he should have inquired of the juror the character of this residence. The inference is, that the complainant’s attorney had no objection to his sitting on the jury. And this conclusion is fortified by the fact, that he was one of the jurors who hung the jury for a time, being at first unwilling to render a verdict for the defendant. And this fact alone would be ample reason for refusing a new' trial, because this juror was on the jury, even though the incompetency of Martin had been unknown to both the complainant and his counsel before the trial, and they could not have discovered that he was incompetent as a juror by the use of ordinary diligence. For it has been decided by this Court, in the case of The State v. McDonald, reported in 9 W. Va. 456, as well as in the case of The State v. Strauder, 11 W. Va. 745, that even in a criminal case a new trial will not be granted for matter, that is a principal cause of challenge to a juror, which was unknown to the prisoner till after the verdict, and which could not have been discovered-before the jury was sworn, by the exercise of ordinary diligence; unless it appears from the whole case that the prisoner has suffered injustice from the fact that such juror served upon the case. It certainly does not appear that the prisoner suffered injustice in this case from the fact, that Martin served on this jury. It — 35 — was incumbent on tbe complainant to show that he suffered injustice, but so far from his so doing, it is proven that the presence of Martin on the jury had only the effect of delaying the rendition of the verdict against him. This testimony of the juror as to what occurred in the jury-room is, I think, admissible. Such evidence is generally admissible to support, though not to assail, a verdict: see Judge Lee’s opinion, Koiner v. Rankin, 11 Gratt. 420. But it is in this case, immaterial whether the evidence of the juror in relation to what passed in the jury-room be received or rejected; for it is settled in this State, that a party asking a new trial must show, that he has suffered injustice from the service on the jury of a juror to whom he could have objected: see State v. McDonald, 9 W. Va. 456, and State v. Strauder, 11 W. Va. 745. Excluding the evidence of this juror, there is not the slightest ground to suspect, from anything appearing in the record, that the appellant has suffered any injustice from Martin’s serving on the jury. The decree of thé circuit court of April 28, 1876, must be therefore affirmed, with costs and $30.00 damages. Judges Haymond and Moore concurred. Decree Affirmed.