Eastern Rock Island Plow Co. v. Stout

Dausman, C. J. (after stating the facts as above): On the assignment that the court erred in overruling the demurrer, the appellant urges that the complaint is bad because no affidavit of any witness was filed therewith or made a part thereof, setting forth the newly-discovered evidence to which the witness would testify. The contention cannot be sustained. First Nat. Bank v. Mulford (1911), 48 Ind. App. 84. All other specific objections to the complaint are involved in the assignment that the court erred in each conclusion of law; and, for that reason, they will not be considered here. Scanlin v. Stewart (1894), 138 Ind. 574; Woodward v. Mitchell (1894), 140 Ind. 406. On the assignment that the court erred in overruling the motion for a new trial, the first contention is that the finding is not sustained by sufficient evidence, because the evidence fails to show that the plaintiff exercised due diligence before the first trial to get the evidence which she has since discovered. An attentive examination of item 13 of the special finding will disclose that the court has fully and clearly stated the particular facts bearing on this point; and from those facts, the ultimate fact (or conclusion of fact) — 228 — that the plaintiff exercised due diligence follows inevitably. The second contention on that assignment is that paragraph thirteen of the special finding is not supported by any evidence in two particular features: (1) That “the executrix had no means, of knowing in what manner the note came into existence”; and (2) that “Smith failed and refused to give her and her sons-in-law any information concerning the note and its execution.” In passing upon the contention, the entire paragraph must be considered and every part thereof must be taken in the light of the context. The meaning of the paragraph is too clear to be mistaken; and, as written, the paragraph is fully sustained by the evidence. Indeed, throughout the entire special finding, the trial court has carefully and conscientiously followed the proof. On the assignment that the court erred in each conclusion of law, it is contended that the special finding does not show “a defense to the note.” It is not necessary that an absolute defense be shown. With respect to that feature, it is sufficient to justify the court in granting a new trial if the. newly-discovered evidence is of such a character that it will probably change the result. 2 Watson, Revision Works’ Practice 571. The finding in that respect is sufficient. We come now to the main contention in the case, viz.: that the special finding fails to show that the plaintiff exercised due diligence to discover the evidence relating to the execution of the note. The appellant has made this contention nearly the whole of its burden in the appeal, having urged it against the complaint, against the ruling on the motion for a new trial, and against the conclusion of law. The solution of the controversy depends upon the answer to each of the following questions: What amount of diligence does the law — 229 — require in this class of cases? To what degree of certainty must the requisite diligence be proved? Referring to the first question: the courts often use the expression “due diligence.” Due diligence means that quantum of diligence which the law requires. Statements of that kind are, of course, indefinite. Because of the inherent nature of the subject, the most definite general statement that can be made is that to entitle a litigant to a new trial on the ground of newly-discovered evidence he must show that he exercised reasonable diligence. That must be the rule, for surely,, the courts should not require of any litigant that which is unreasonable. And that is the rule generally recognized by the courts. 20 R. C. L. 289 et seq.; 29 Cyc 886 et seq.; 16 Am. & Eng. Ency. of Law 564 et seq.; 14 Ency. Plead. & Prac. 798. Now, what quantum of proof does the law require of the plaintiff to make out her case? When she applied for a new trial on the ground of newly-discovered evidence, she had to face the presumption that by the exercise of reasonable diligence she might have discovered the evidence before the trial. ' Zimmerman V. Weigel (1902), 158 Ind. 370; Kober v. Boyce (1917), 64 Ind. App. 677. Because of that presumption, and because her application involved the cancellation of a judgment, it was the duty of the trial court to proceed with caution. Much has been written on this subject and the duty of the trial courts has been variously stated. In Coe v. Givan (1825), 1 Blackf. 367, Judge Blackr ford himself, speaking for the court, said: “In listening to such applications, Courts of justice have always been extremely cautious, and have uniformly overruled them, where, upon using due diligence, the evidence might have been discovered before. 6 Bac. 672. Much is necessarily left to the discretion of the Courts below — 230 — in motions for new trials, and it requires a case much stronger than the present, to induce us to interfere with them in questions of this kind.” In Doubleday v. Makepeace (1835), 4 Blackf. 10, 28 Am. Dec. 33, the court said: “In the case of Bateman v. Willoe, 1 Sech. & Lef. 201, Lord Redesdale observed, that a bill for a new trial was watched by equity with extreme jealousy, and it must see that injustice has been done, without the fault, negligence, or inattention, of the party seeking the relief.” In Morrison v. Carey (1891), 129 Ind. 277, the court said: “The law favors the diligent, and punishes the negligent. A party seeking a new trial on account of evidence discovered since the termination of the controversy between him and his adversary must, if he succeed, establish every element of such a case strongly, clearly, and satisfactorily. The strong presumption is that by the proper effort the party might have discovered the evidence and used it on the trial; and that his failure to do so is owing to intentional omission, or to unpardonable neglect, and to overcome this presumption a case must be made free from delinquency.” In Zimmerman v. Weigel, supra, the court said that: “Under no circumstances in such cases will the court grant a new trial unless the applicant clearly and unequivocally, both in his pleading and in his proof, shows that he exercised due diligence in his efforts to procure, at the first trial, the evidence in question.” The court further said that the presumption against the applicant “can only be rebutted by a satisfactory showing to the contrary.” The following statement, taken from Baker v. Joseph (I860), 16 Cal. 173, has found its way into our reports: “Applications for this cause are regarded with distrust and disfavor.” Morrison v. Carey, supra. It has also been said that the applicant’s excuse for not adducing — 231 — the evidence at the trial “must be so broad as to dissipate all surmise to the contrary.” McKernan, Admr., v. Estabrook, Admr. (1917), 66 Ind. App. 212. Manifestly, some of the statements on this point are exaggerations. The courts must not be led astray by strong words. However, when making the multifarious and varied statements on this subject, undoubtedly the courts had in mind the same purpose. They were all aiming at the same target. On calm and thoughtful consideration of the whole subject, it becomes apparent that underlying the diversified statements is the great truth that it is the duty of every court to be fair about it; for any attitude other than fairness is not judicial. Furthermore, in dealing with the statements above quoted, the courts have to encounter an inherent difficulty—the element of indefiniteness.. What constitutes extreme caution ? When is the proof clear, when strong, and when satisfactory? Undoubtedly, it is the duty of every court, in cases of this kind, to be on guard against fraud and imposition, and to see that the proof establishes every element necessary to entitle the plaintiff to the relief sought. Simpson v. Wilson (1855), 6 Ind. 474; Swift v. Wakeman (1857), 9 Ind. 552. Ultimately, however, each case must stand or fall on its own facts. As said in Richter v. Meyers (1892), 5 Ind. App. 33: “There are cases in which great injustice might result, however, if a party should be denied the benefit of newly-discovered evidence, but in all such cases the' applicant must make out a clear case of diligence, and show particularly that he made all reasonable efforts to discover the evidence before the trial, or he will be denied relief.” The fact must not be overlooked that the plaintiff’s action is essentially a suit in equity. It can be nothing else; for it involves the cancellation of a judgment. In this jurisdiction, prior to the adoption of the Code, ap — 232 — plications like the one at'bar were instituted by filing a bill in chancery. Mason v. Palmerton (1850), 2 Ind. 117. “Applications to a court of chancery for a new trial, after a trial at law, are in our time very rare. The practice, except in cases the most extraordinary, has long since gone out of use, because courts of law are now competent to grant new trials, and are in the constant exercise of that right to a most liberal extent. Anciently, courts of law did not grant new trials, and in those days courts of equity exercised that jurisdiction over trials at law, and compelled the successful party to submit to a new trial, when justice required it; but even in that age, the court of chancery proceeded with great caution.” Doubleday v. Makepeace, supra. A complaint for a new trial on the ground of newly-discovered evidence, pursuant to §614 Burns 1926, §589 Burns 1914, must be regarded as a substitute for a bill in chancery. (See Moore v. Coates [1878], 35 Ohio St. 177.) The trial court- must determine, in the first instance, whether the proof is clear, strong, and satisfactory; whether an injustice has been done; whether the plaintiff has exercised reasonable diligence; and whether the ends of justice require that a new trial be granted. In passing on each case, the trial court exercises a legal discretion, and on appeal, its judgment will be reversed only for the abuse of that discretion. It has been aptly said that “a court clothed with power to grant new trials, must necessarily be vested with large discretion.” Moore v. Coates, supra. In the light of the foregoing principles, we will now consider the contention that the conclusion of law is erroneous because the plaintiff has not shown that she is free from negligence. The contention rests on the proposition that she might have dis — 233 — covered the evidence concerning the execution of the note in any one of the following ways: (1) By filing proper interrogatories with her pleadings (.§383 Bums 1926, §365 Burns 1914); (2) by taking a preliminary examination (§564 Burns 1926, §533 Burns 1914); or (3) by examining Smith as a witness at the trial. Assuming, for the sake of elucidating this feature, but for no other purpose, that the procedure indicated by the contention would have been proper on the pleadings filed, yet the fact remains that there must have been something in the mind of the administratrix to suggest that procedure. What was within the scope of her mental vision to prompt her to pursue that course? What was her situation? It may be assumed that she was familiar with her deceased husband’s signature and could not deny its genuineness. It may be assumed that she had reason to believe that he had no previous dealings with the plow company and that he must have signed the note as surety for Smith. It may be assumed that from Smith’s statement to the effect that the note does not represent the true amount he owes the plow company, the note being for too large a sum, she acquired the impression that possibly he had made partial payments thereon. With respect to the questions of suretyship and payment, she did what might reasonably have been expected of her. As to all things else pertaining-to the note, she was in utter ignorance and darkness. She appealed to Smith; but he gave her no light. She interviewed Snyder; but he refused to say more than that “he knew that the decedent’s name was upon the paper when delivered.” In the circumstances, could she reasonably have been expected to do more? Is it reasonable to say that she is chargeable with negligence because she did not anticipate the evidence which has since come to light? To have foreseen the existence of- that evidence, she must — 234 — have been endowed with extraordinary mental faculties amounting to preternatural power of divination. We are of the opinion that she exercised reasonable diligence. Springfield, etc., Co. v. Michener (1899), 23 Ind. App. 130. The newly-discovered evidence will probably change the result. §11359 Burns 1926, §9089 et seq. Burns 1914. Evidently the plaintiff’s cause appealed to the conscience of the trial court; and there is nothing in the record to justify a reversal. The judgment is affirmed. McMahan, J., dissents.