Cleslie v. Frerichs

Granger, J. The only question before us is as to the sufficiency of the record to sustain the ruling of the district court in granting a new trial. The grounds of the motion which was sustained are the misconduct of the prevailing party and newlv-discovered evidence. The instruments in suit were executed in Germany, one of them being for three thousand marks, dated January 1, 1884. The issues involved the identity of the defendant as the party who signed the instrument. The plaintiff is a resident of Germany, and has never been in this country. His testimony is in the record, and he swears to having loaned defendant four hundred marks January 15,1879, six hundred marks June 11, 1881, and three thousand marks January 1, 1884. These are the claims for which the action is brought. The testimony of the plaintiff shows the defendant to have been in Germany up to April 4, 1884. The defendant was married after reaching Clayton county, in this state. Both the defendant and his wife were witnesses on his behalf at the trial, and each swore that they were married in Clayton county, October 11, 1883. This fact, if true, would conclusively show that defendant is not the man who signed the instruments. From the showing for a new trial it is made to appear that the marriage records of Clayton county show'that these parties were married October 11, 1884, and the showing in other respects is very strong to that effect* If this be true, the defendant has'secured a verdict by the introduction of false testimony. Misconduct of the-prevailing party is a statutory ground-for a new trial* 85 See First Nat. Bank v. W., St. L. & P. Ry. Co., 61 Iowa, 700, 17 N. W. Rep. 48, Code, section, 2887. It is not for us to pass upon the truth or falsity of the evidence on the trial or the showing for a new trial on the particular question, further than to say that it is such that the district court could, in its discretion, find that there was misconduct. In fact, we think, in view of the record, that the discretion was wisely exercised. It is true that the new testimony is largely cumulative, but that fact should not conclusively overcome the showing of miscondpct. There is a claim of a want of diligence to sooner discover the newly-discovered evidence. The case, in this respect, is somewhat peculiar. The plaintiff is in Germany. The answer does not disclose that the identity of defendant as the person claimed to have signed the instruments is questioned. If he is the maker of the instruments, he is a brother-in-law to the plaintiff, which he denies. Affidavits from Germany, in support of the motion for a new trial, in view of other evidence, make it appear that defendant was not in Iowa in 1883, but was in Germany, and was the maker of the notes. We think that we should not disturb the action of the court, and the order granting a, new trial is affirmed.