Pahnvitz v. Fassman

The judgment of the court was pronounced by Rost, J. This is an action of redhibition. The plaintiff seeks to annul the sale of a female slave made to him by the defendant, on the ground thatthe said slave was addicted to running away before he purchased her. The defendant pleaded the general issue, and called his vendor in warranty. Many witnesses were examined on both sides, in relation to the redhibitory vice alleged; and the plaintiff has appealed from .the judgment rendered against him on the evidence. The case turns exclusively-upon a question of fact, and the evidence in the record fully justifies-the conclusionUo which the judge came. The appellant’s counsel has called our attention to a motion made by him for a new trial, and supported by the affidavit of his client, “ that since the trial of the cause, and even since judgment was rendered, he had discovered important evidence which he could not obtain before, although he had used every effort and diligence in liis power.” T-wo of the- witnesses mentioned in the affidavit reside in the city of New Orleans, and the other in the adjoining city of Lafayette.. The judge of the court below, considering it strange that the plaintiff should have discovered .all-this additional evidence within three days after the judgment, and that all his efforts and diligence should not have enabled Mm to discover it- in the fourteen- months which elapsed from the institution of the suit until the trial of it, was of opinion that proper diligence bad not been used,, and'refused the new trial. The granting of new trials rests within the discretion of the judge of the first instance, and. the Supreme Court has not been in the habit of controlling, that discretion in any-but very-olear cases. When the application rests on the ground of newiy discovered evidence, “the party must make Ms vigilance apparent, for if-it is left even doubtful that he knew of the evidence, or that he might, -but for negligence, have known and produced it, he cannot succeed in his-application. Graham on New Trials, 473. Bonnet v. Legras, 1. Rob. 93. 18 La. 535. The vigilance of. the appellant in this case is inore than doubtful, and-w-e cannot interfere- Judgment affirmed.