Broat v. Moor

Gileillan, C. J. A number of questions are made in this case, such as that the matter alleged in the answer in respect to the tax-deed is not new matter requiring a reply; that, after the trial and decision of a case, the court cannot allow new issues to be made other than those in the pleadings on which the case was tried, for the purpose of ordering a new trial for newly-discovered evidence; and that the affidavit of plaintiff’s attorney did not show due diligence on his part to discover the evidence. But we find it unnecessary to determine any of these points, for the reason that there was a fatal omission in the proofs on which the'motion for a new trial was made. There was notñing to show that the plaintiff did not know at the time of the trial, and at the time of making the issues for trial, of the existence of the alleged newly-discovered evidence. Certainly, if the plaintiff knew of it, the fact that his attorney did not is not enough to justify a new trial. Hil. New Trials, p. 499, § 11; State v. Carr, 21 N. H. 166; Baker v. Joseph, 16 Cal. 173; Arnold v. Skaggs, 35 Cal. 684; State v. McLaughlin, 27 Mo. 111. If it be left even doubtful that the party knew of the evidence, he will not succeed. Nininger v. Knox, 8 Minn. 110, (140.) A strict adherence to this rule is necessary to prevent imposition upon the court. Usually an affidavit of the party that he did not know of the evidence, and showing that his ignorance was not due to want of diligence on his part, is required, although that may be dispensed with where it clearly appears otherwise that he did not know of and by due diligence could not have discovered the evidence. It is, however, rarely safe to dispense with it. There is nothing in this ease to suggest ignorance on the part of plaintiff. The. nature of the case suggests the contrary. The complaint shows that when he commenced the action the plaintiff knew what defendant’s claim of title was, and what the action was to assail. It is fair to presume that before commencing it he had caused the tax-deed and the proceedings which resulted in it to be examined, and ascertained the facts, and by what evidence they could be proved. Order reversed.