Stineman v. Beath

Miller, J. I. In respect to the first ground stated in the petition for a new trial, namely, the express waiver on the part of defendant’s attorneys of the production of evidence, by plaintiff, to prove that he had been duly appointed administrator, etc., together with the alleged fact that he had been thus appointed, the petition was sufficient on this branch of the case, and the demurrer was properly overruled. The demurrer admits these averments to be true, and certainly when defendant’s attorney expressly waived proof of plaintiff’s right to sue in his representative capacity, the court should not have found for the defendant upon the plea in abatement filed in the cause. ñewir-aSooY-" II. It is next objected by appellant’s counsel that the newly-discovered evidence, as shown by the petition, is only cumulative, and it is insisted that the court erred in not sustaining the demurrer on this ground. It is well settled, by numerous decisions of this court, that [78] a new trial will not be granted on tbe ground of newly-discovered evidence, where such evidence is merelp cumulative. McDaniels v. Van Fosen, 11 Iowa, 195; Sturgeon v. Ferron, 14 id. 160; Wilhelmi v. Thorington, id. 537; Shepherd v. Brenton, 15 id. 84; Alger v. Merritt, 16 id. 121, 127. If it appears from the face of the petition that the evidence newly discovered is merely cumulative, the objection may be taken by demurrer. But in this case it does not so appear from the face of the petition. The issue contested was upon the signature of the defendant to the note sued on, and the petition states, in substance, that plaintiff has discovered since the trial, and has procured the possession of certain other notes made by the defendant about the time of the making of the note sued on, the signatures to which, when compared with that to the note in suit, will prove that defendant’s signature to the latter is genuine, and it is averred in the petition that no evidence of this character was offered on the trial of the cause. What the evidence on the trial was is not shown. The evidence is not set out, and it does not appear upon the face of the petition for a new trial that the newly-discovered evidence is simply cumulative. On the contrary, by general averment it is shown that such is not its character; at least that it is not exclusively and simply cumulative. That evidence is in some respects cumulative is not sufficient objection thereto as grounds for a new trial, if in any degree it has an independent and distinct bearing upon the issue. See Alger v. Merritt, supra. %_contents of petition. It is not necessary that the petition, in cases like this, should set out the evidence produced on the trial. The petition need onty show the facts upon which the new trial is asked, “ as in other cases.” The facts thus stated are “ considered denied without answer,” and the issues “ tried as other cases by ordinary proceedings.” Rev., § 3116; Alger v. Merritt, supra; Richards v. Nuckolls, 19 Iowa, 555. True the newly-discovered evidence ought to be shown, and it should appear that the party can prove the newly-discovered facts. Alger v. Merritt, supra. But as the issues upon the petition [79] are to be tried as an ordinary proceeding, tbe petition need only state facts, as in other cases. The evidence upon tbe issues made should be produced upon tbe trial. We bave already seen that tbe petition does not upon its face show tbe newly-discovered evidence to be simply cumulative. Tbe demurrer, therefore, as to this ground, was properly overruled. 3. diligence. III. It is further objected by tbe demurrer that no sufficient diligence is shown. We are of opinion that tbe court below might properly bold that tbe facts stated in tbe fajr¡y an(j reasonably show that tbe evidence “ could not with reasonable diligence bave been discovered before.” Tbe statute does not require tbe exercise of tbe highest degree of diligence in such eases, but “ reasonable diligence ” only. Rev., §§ 3112, 3116, subd. 7; Richards v. Nuckolls, supra. i. plbadikg ; -waiver of errors, IY. Appellant’s counsel urges as erroneous, tbe ruling of tita court below in overruling bis motion to out verification to the petition for a new trial, and also tbe ruling on tbe motion for a more specific statement. Although tbe appellant excepted to tbe rulings of tbe court upon bis motions, yet by filing bis demurrer to tbe petition be waived these exceptions, and they will not now be considered on appeal from tbe ruling on tbe demurrere, Rvision, §§ 2864, 2865, 2866, 2916; Rea v. Flathers, 31 Iowa, 545; Benedict v. Hunt, 32 id. 27. These motions are in the nature of special demurrers under tbe common-law rules of pleading, attacking tbe pleading for formal defects, and when appellant filed bis demurrer to tbe petition attacking tbe petition upon the merits be waived these formal defects, if any existed. Tbe order of tbe circuit court overruling tbe demurrer is Affirmed.