Smith v. Shook , 30 Mont. 30 ( 1904 )

ME. COMMISSIONEE POOEMAN

prepared the following opinion for the court:

This action was commenced in the justice court to recover the sum of $50 alleged to have been theretofore loaned by plaintiff to defendant. The defendant made general denial. Verdict and judgment for plaintiff. Defendant appealed to tlie district court, where a trial again resulted in a verdict and judgment for the plaintiff. The defendant appeals from the judgment and from the order denying his motion for a new trial.

It appears from the record that the plaintiff and his wife had been employed by the firm of Shook & Hinchman, and had been paid a certain compensation; that plaintiff had borrowed a sum of money from the firm, which he had afterwards repaid. Plaintiff claims also that he had some money, derived from other sources, at the time he made the alleged loan to defendant.

1. At the trial the defendant sought to show by cross-examination of plaintiff’s wife, Hrs. C. G. Smith, that plaintiff’s statement of the amount of money received by him for the labor was not true; that plaintiff had secured $50 from defendant for the purpose of sending witness to Chicago; that plaintiff at the time had no money. This evidence was objected to as improper cross-examination, and the objection was sustained. The defendant does not claim that he ever loaned the plaintiff any money. It is admitted by defendant that the money borrowed from the firm by plaintiff had been repaid prior to the commencement of this action. There was no dispute between plaintiff and defendant as to the amount received by plaintiff for labor performed for Shook & Hinchman, and the witness had not testified on direct examination as to any other money plaintiff had at any time. The court did not err. in sustaining this objection.

2. It is also claimed that a new trial should have been granted on the ground of surprise and newly discovered evidence under Section 1171 of the Code of Civil Procedure, and that, an extension of time should have been given appellant in which, to file additional affidavits on his motion for a new trial. The showing of surprise and newly discovered evidence consists in the alleged fact made to appear that plaintiff had testified in the justice court that no one was present when this loan "was made, while in the district court he testified that his wife was present; and that Airs. C. G. Smith, after the trial, made statements to the effect that she was not present at the time the loan was, made, while in her testimony she had stated that she was present at that time. This, newly discovered evidence in either case is no mere than impeaching evidence, and that relating to plaintiff does not go to his testimony regarding the loan itself, bnt to the incidental fact as to who was present at that time. At the trial in the district court the defendant knew of the statements made by the plaintiff at the former trial, and knew in whose presence they were made, but no continuance was asked for, and apparently no effort then made to secure the evidence. The trial proceeded without any objection, and defendant testified on this very point. This impeaching evidence as to plaintiff then became cumulative. The defendant should have made some effort, when it first became known to him that this impeaching evidence was necessary, to have secured a continuance or permission to have these witnesses called. Objection after verdict, in such, cases, comes too' late. (Heath v. Scott, 65 Cal. 548, 4 Pac. 557; Knuffke v. Knuffke, 8 Kan. App. 857, 56 Pac. 326; Pincus v. Puget S. B. Co., 18 Wash. 108, 50 Pac. 930; Walker v. Gray, (Ariz.) 57 Pac. 614; Huster v. Wynn, 8 Okl. 569, 58 Pac. 736; Lee Clark A. H. Co. v. Yankee, 9 Colo. App. 443, 48 Pac. 1050; Rand v. Kipp, 27 Mont. 138, 69 Pac. 714; Romero v. Desmarais, 4 N. Mex. 367, 20 Pac. 787.)

3. The defendant filed an affidavit in support of his motion for a new, trial, but made no reference whatsoever to- this newly discovered impeaching evidence as to -the witness Mrs. O. G. Smith, nor did defendant offer any affidavits of the witnesses by whom he exepected to make the proof, nor give any reasons why he did not make reference thereto or submit the affidavits, though it is stated in the affidavit of defendant’s attorney that he knew the names of some of those witnesses. (Elliott et al. v. Martin et al., 27 Mont. 519, 71 Pac. 756.)

It is fundamental that the moving party must show by his own affidavit that the new evidence was not known to him at the time of the trial. TJpon that question the affidavits of other persons are not, as a general rule, sufficient. (1 Spelling, New Trial & App-. Prac. par. 207, and cases cited; Hayne, New Trial & App: par. 92; Arnold v. Skaggs, 35 Cal. 684.)

It is a general rule that, before a new trial will be granted on the ground of newly discovered evidence, cumulative or impeaching, it must be made to appear affirmatively that the new evidence would probably be sufficient to change the verdict and produce a different result. (Hayne, New Trial, par. 90; Huster v. Wynn, supra; Leyson v. Davis, 17 Mont. 220, 42 Pac. 755, 31 L. R. A. 429; Springer v. Schultz, 105 Ill. App. 544; Francisco v. Benepe, 6 Mont. 243, 11 Pac. 637. See, also, Baxter v. Hamilton, 20 Mont. 327, 51 Pac. 265; State v. Brooks, 23 Mont. 147, 57 Pac. 1038.)

Statutes similar to Section 1171 of our Code of Civil Procedure have been so construed. (Oberlander v. Fixen & Co., 129 Cal. 690, 62 Pac. 254.)

“The additional evidence to afford opportunity for the introduction of which a new! trial is sought, must be newly disicovered, by which expression is meant that it must have been discovered since the trial. If discovered before or at the trial, and no continuance of the tidal was applied for, an answer to the motion that no diligence is shown will be sufficient to defeat it, no matter what else may be shown.” (1 Spelling, New Trial, supra; Curran v. A. H. Stange Co., 98 Wis. 598, 74 N. W. 377.)

It appears from the record that nine affidavits relative to the alleged statements made by plaintiff at the former trial were read and used in support of the motion for a new trial, and the court did not err in refusing to extend the time in order to enable the defendant to secure additional affidavits on that point, even if the application for such extension had been made within the time required by. Section 1173, Code of Civil Procedure, as that section is construed in Wright v. Mathews, 28 Mont. 442, 72 Pac. 820, and State ex rel. Stromberg-Mullins Co. v. Second Judicial District Court, 28 Mont. 123, 72 Pac. 412.

We find no material error in tliis case, and recommend that tlie judgment and order appealed from be affirmed.

Pee Curiam.

For the reasons stated in the foregoing opinion, the judgment and order are affirmed.