Smith v. Williams , 11 Kan. 104 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

The only question in this case is whether the district court erred in overruling a motion for a new trial. The motion was based on the ground of newly-discovered evidence. While the rules by which motions of this kind must be determined are well settled, and clearly defined, yet in the application of these rules much must be left to the discretion of the trial court. When a case has been once fairly submitted to a jury, the verdict ought not to be disturbed, and the successful party put to the labor, the expense, and the hazard of another trial for any light or trivial reasons, or upon the mere possibility of a different verdict. Especially is this true where the amount in controversy is small, for then it is to the interest of both parties, as well as that of the public, that the litigation should cease as speedily as possible. Here the judgment was for forty-one dollars and twenty cents. Before granting a new trial in case upon the ground of newly-discovered evidence, it should be very evident that the other party has, after using all reasonable and proper diligence, lost the verdict through lack of testimony which he has since discovered. Diligence prior to the trial in seeking testimony is an essential prerequisite. Such diligence must be shown. An allegation in the affidavit of the party, that “he has used due diligence,” is insufficient. In this case the newly-discovered evidence is of an admission of the defendant in error of a fact which he denied on the trial. This was the second trial, more than two months having passed since the first. The affidavit of the discovery of this e vidence is made two days after the verdict. It nowhere appears how this evidence was discovered, whether by the volunteer statement, or through inquiry made directly of the witness} nor where the- witness had been prior to the trial, and why no inquiry had previously been made as to her knowledge. For aught that the record discloses, her relations to the parties and transaction may have been such that a failure to procure her attendance and testimony was really gross negligence. All the evidence of diligence presented is the mere allegation in the affidavit that the party made inquiry of every person he thought might know anything about the case, and failed to obtain this evidence, and that, he has used due diligence. This is virtually swearing to a conclusion. He does not in his affidavit even name the witness who is to furnish this newly-discovered evidence. True, the affidavit of Helen Smith is produced, who testifies to hearing this admission of the defendant in error, and we may therefore infer that she is the witness intended. But this is simply an inference. We do not think this showing of diligence is sufficient to justify us in reversing the ruling of the district co urt. The judgment will therefore be affirmed.

All the Justices concurring.