Schnurr v. Stults

21 N.E. 1089, 119 Ind. 429, 1889 Ind. LEXIS 302

• Court: Indiana Supreme Court
• Decided: June 22, 1889
• Docket: No. 13,613
• Status: Published

Opinion

Elliott, C. J. —

The appellant claimed in the court below a new trial upon the ground of newly discovered evidence. An issue of fact was made by counter-affidavits, and upon this issue the appellant failed. So far as the affidavits and counter-affidavits properly presented an issue of fact, the decision of the trial court is binding upon us, as it is well supported.

If, however, the affidavits of the appellant only are to be considered, they do not entitle him to a new trial, for there is not such diligence shown as the law requires. One who-asks a new trial upon the ground of newly discovered evidence must show particular acts of diligence. It is not enough for him to aver, in general terms, that he exercised diligence. Hines v. Driver, 100 Ind. 315; Allen v. Bond, 112 Ind. 523. This rule disposes of the statements of the affidavits as to the written contract which they describe, for it does not appear that there was a diligent and proper search or inquiry made before the trial, and it also disposes of the oral admissions of which the affidavits make mention. The law requires diligence before trial, and views with disfavor motions for new trials on the ground of newly discovered evidence.

The evidence alleged to be newly discovered is cumulative, for the appellant himself testified to the same matters as those stated in the affidavits. Atkisson v. Martin, 39 Ind. 242; Fox v. Reynolds, 24 Ind. 46; Lefever v. Johnson, 79 Ind. 554.

Filed June 22, 1889.

' The affidavits fail to show that the newly discovered evidence would probably change the result. The newly discovered witness, in other affidavits, so fully contradicts the statements contained in the affidavit made by him at the instance of the appellant, that his testimony could not have much, if any, weight in appellant’s favor.

There was no error in refusing to compel the jury to itemize the articles of property contained in the saloon which was sold by the one party to the other. It is a mistake to suppose that evidence is to be stated in answers to interrogatories. Louisville, etc., R. W. Co. v. Wood, 113 Ind. 544. The practice of asking for items of evidence has been justly and severely censured. Ward v. Busack, 46 Wis. 407.

The verdict is well supported by the evidence.

Judgment affirmed.