Gray v. Harrison

Opinion by Lewis, O. J., full Bench concurring. One of the grounds upon which a new trial was claimed in this cause, was the discovery of new evidence material to the issue after the trial. By the affidavit of the defendant Shad it is shown that he is the only defendant having any interest in the action; and that after the trial he had learned new facts material to his case, which, notwithstanding the diligent inquiry made by himself and his attorneys, had not been discovered until after the trial. The newly discovered evidence is fully set forth in the affidavits of U. P. Hutchings and David S. Turner, the witnesses by whom defendants expect to present the same. These affidavits, together with a statement containing the evidence produced at the trial, were filed within the proper time; the motion for new trial made and overruled, and defendants appeal from the order denying it. It is agreed between the counsel for the respective parties that the statement on motion for new trial shall constitute the statement on appeal, but counsel for respondent claims that there being no assignment of errors or statement on appeal, containing the grounds upon which appellcmts i/ntend to rely, this Court can consider no errors that do not appear in the judgment roll. But defendants not having appealed from the judgment but only from the order denying a new trial, we cannot look into the judgment roll; if it be correct, therefore, that errors not appearing there cannot be passed upon, the ruling of the Court below would have to be sustained. Eor the purposes of this case, however, we think a statement containing an assignment of errors is unnecessary, for if the Court is precluded from considering errors committed at the trial, or determining [508] whether the evidence was sufficient to justify the verdict, its right to pass apon the sufficiency of the affidavits used upon the motion for new trial is undoubted. Where an appeal is taken from an order made on affidavits, no statement is required, and those sections of the Practice Act making it the duty of the appellant to prepare a statement containing the grounds upon which he intends to rely on appeal, have no application to an appeal from such an order. Section 281 expressly declares that the provisions of those sections “shall not apply to appeals taken from an order made upon affidavits filed, but such affidavits shall be annexed to the order in the place <Jf the statement mentioned in those sections.” The affidavits used by the moving parties in the Court below are properly before this Court, and the motion contains a sufficient assignment of errors to enable it to pass upon their sufficiency. Admitting the propriety of reviewing them, it is next to be determined whether they make a sufficient showing to entitle the appellants to a new trial. That the evidence of Hutchings and Turner is material to the defendants’ case will scarcely admit of doubt; but it is claimed that it is merely cumulative, and consequently not sufficient to authorize a new trial. Hutchings swears that he has known the lot in question since the year 1860, that in the Spring of that year George A. Gray, the plaintiff, and one George May (from whom plaintiff derived an undivided one-half interest in the premises), in his presence requested of Joseph Clark, the grantor of defendants, the privilege of using the lot in question for the purposes of a hay yard; that Clark informed them that they could fence it and have the use of it for such rent as they chose to' pay. He also swears that George May stated in his presence, about two years before the bringing of this suit, that Gray was about to commence proceedings to recover the lot, but that he could not get it, as it belonged to Joseph Clark. It is also shown by the affidavit of David S. Turner, that in the early part of the year 1862, May admitted to him that the property in dispute belonged to Clark, and that one Robert Morrow was his agent and had authority to lease it. These admissions by May were made prior to his conveyance to Gray, and are new and inde [509] pendent facts unknown to defendants at tbe time of trial. Had these admissions been proven at tbe trial, tbe testimony of other witnesses to tbe same admissions would be merely cumulative. But that only is cumulative which is in addition to or corroborative of what has been given at the trial. To render evidence subject to this objection, it must be cumulative, not with respect to the main issue between the parties, but upon some collateral or subordinate fact bearing upon that issue. In the case of Aiken v. Bemis, 3 Woodbury & Minot, 348, Judge Woodbury said: “ The meaning of the rule cannot be to exclude as cumulative newly discovered evidence of subordinate points or facts bearing on the general question, for in such view no new trial for new evidence could ever be obtained; all new evidence, relating as it must, if it be pertinent to the general ground or general fact put in issue before. But it must mean that new evidence to a subordinate point, or fact, is not competent when that subordinate point, or particular fact, was before gone into; because it is then cumulative, or additional, as to that fact.” If the newly discovered evidence brings to light some new fact bearing upon the main question, and it would be likely to change the result, a new trial should be granted. (Walter v. Graves, 20 Com. 303; Parker v. Hardy, 24 Pick. 246; 3 Graham & Waterman on New Trials, 1040; Hardner v. Mitchell, 6 Pick. 114.) The facts claimed to have been newly discovered are certain admissions of the plaintiff’s grantor, made at a time when he and plaintiff claim to have been in possession as tenants in common. There was no testimony introduced upon the trial to show those admissions, and one of the defendants swears that they were not discovered until after such trial. New trial should therefore have been granted. Judgment reversed.