Howard v. Winters

Opinion by Lewis, J., Beatty, C. J., and Johnson J., concurring. • This action is brought to recover a sum of money claimed to be due upon a certain promissory note bearing date September 30th, a.d., 1865, and signed “ Joseph D. Winters, by Edward C. Morse.” As a defense the defendant Winters pleads: first, that the note was given without consideration; and second, that Edward C. Morse had no authority as his agent to execute it. The case having been tried without a jury, the Judge below reported the following as findings of fact: • “ First — That on the thirtieth day of September, a.d. 1865, the said defendant, Joseph D. Winters, for value received, did by his duly authorized agent and attorney, Edward. C. Morse, at Glen541 brook, in the County of Ormsby, State of Nevada, make, execute and deliver to the said Edwin C. Morse the promissory note in the complaint set forth, and thereby undertook and promised to pay the said Edward C. Morse, or order, the sum of seven hundred and eight dollars in forty days after date, with interest thereon at the rate of one and one-half per cent, per month; that the said Edwai'd C. Morse was duly authorized and empowered to make, execute, and deliver the said promissory note for and on behalf of said Joseph D. Winters; that afterwards, and before the maturity of said note, the said Morse, for value received, indorsed said note and delivered it so indorsed to plaintiffs, who are now the owners and holders thereof. “ That no portion of either the principal or interest of said note has been paid, and there is now due thereon the sum of seven hundred and eight dollars principal and sixty-seven dollars and fifty-five cents interest.” Upon these findings judgment was given for plaintiffs. A motion for a new trial was afterwards made and refused by the Court below. From the ruling upon that motion and from the final judgment the defendant Winters takes this appeal, and relies upon the following points for a reversal : First — That a new trial should have been granted upon the showing of evidence discovered after the trial; and Second — That the evidence does not justify or support the findings of fact. Section 193 of the Practice Act declares that “ The former verdict or other decision may be vacated, and a new trial or rehearing granted, on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party.” The fourth cause enumerated in this section is, “ Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial.” Section 194 provides that where newly discovered evidence is the ground upon which the new trial is sought, the application must be made upon affidavit. [542] To sustain a motion'for new trial upon this ground, it is indispensably necessary to show :• first, that the newly discovered evidence is material to the party making the application; second, that he could not with reasonable diligence have discovered and produced it at the trial; and third, that it is not cumulative. Applications for new trial upon this ground have been uniformly viewed with jealousy by the Courts, and generally have been granted only upon a very satisfactory showing. It is for the public good that there be an end to litigation. When therefore, a trial has been had, and a judgment rendered, a second trial should only be granted to further the ends' of justice, and not to relieve litigants from the consequences of their own laches, thoughtlessness or neglect. The law demands of the parties all reasonable diligence and caution in preparing for trial, and furnishes no relief for the hardships resulting from inexcusable neglect or want of diligence. When therefore a new trial is sought because of newly discovered evidence, it should most certainly be shown by the party making the application that his failure to produce such evidence at the first trial was not the result of any negligence upon his part. Of that fact the Court should be perfectly satisfied. To grant new trials upon this ground, where no such showing is made, would simply be giving encouragement to negligence, and judicial approval to inexcusable carelessness. The appellant in this case made no such showing by the affidavit of Colbath. That affidavit simply shows the following facts: That Colbath, who seems to have been a part owner with the defendant Winters in the Glenbrook House, had a settlement with the tenant Beaty long prior to the giving. of the note sued on in this case; that upon that settlement it was found that Beaty was indebted to Winters and Colbath in the sum of one hundred dollars, for which he gave his note, and that he, Colbath, had not prior to the trial informed Winters of such settlement. This evidence is supposed to be material, because tending to show that Winters and Colbath were not indebted to Beaty, and hence that there was no consideration for this note, which was 'given to secure an indebtedness which Beaty owed to the plaintiffs. But testimony tending to show that the defendant was not [543] indebted to Beaty would simply be cumulative. That Winters was not indebted to Beaty at the time this note was given seems hardly to have been disputed at the trial. Beaty testified that nothing was due him, and Winters also swore to the same fact. But the plaintiffs did not seem to rely upon such indebtedness as a consideration. Their agent testifies that the consideration was the surrender of the house by Beaty to Winters. Clearly, therefore, Colbath’s testimony is simply cumulative, and when such is the case a new trial will not be granted. (Gray v. Harrison, 1 Nev. 502.) Even if it be not cumulative, the appellant made no showing that he had used any diligence whatever to secure Oolbath’s testimony; nor indeed is there anything in the record to show that Winters did not know at the time of the trial of the settlement between Colbath and Beaty. True, Colbath swears that he did not inform Winters of that fact until after the trial, but he may have learned it by simply consulting his own books of account, or inquiring of his tenant. If the appellant did not know of the settlement- at the time of the trial he could surely have made some showing to that effect. His own affidavit should if possible have been obtained. That the evidence was discovered after the first trial, and that the appellant was not chargeable with inexcusable negligence, is not by any means made out. The party applying for a new trial on the ground of newly discovered evidence must make his vigilance apparent; for if it is even doubtful that he knew of the evidence, or that he might but for negligence have known and produced it, he will not succeed in his application. . (1 Graham & Waterman on New Trials, 473; Baker v. Joseph, 16 Cal. 173.) Upon the second point also our conclusion is adverse to the appellant. We have heretofore held that we will not set aside the findings of the lower Court, or the verdict of a jury, upon the ground that they are not justified or supported by the evidence, unless it be shown that all the material evidence is before us. (See State v. Bonds, 2 Nev. 265.) The stipulation by counsel that the statement is correct, cannot be tortured into an admission that it contains all the testimony when no such fact appears in the statement itself. The stipulation of counsel goes no farther than to admit that all the testimony which is set out in the statement is correctly stated. The [544] statement purports to give the testimony of three or four of the witnesses who were sworn at the trial. Whether all their evidence is given or not, or whether they were all the witnesses who testified in the case, does not appear. An admission therefore by counsel that the statement is correct is surely no admission that no other witnesses were sworn, or that the record contains all that was sworn to by those mentioned. In agreeing that a statement is correct, counsel admits nothing beyond that which is set out in the statement itself. Had it been affirmed in the statement that it contained all the evidence, a stipulation that the statement was correct would of course be an admission of the fact that it contained all the evidence. It is urged by counsel however, that it is only necessary to set out so much of the evidence as is necessary to explain the points taken upon appeal. Very true. But to enable this Court intelligently to pass upon the question whether the findings or verdict are sustained by the evidence, it is necessary that it have all the material evidence before it. The transcript does not purport to contain it. The presumption is therefore in favor of the regularity of the findings of the judgment of the Court below. Judgment affirmed.