Burnley v. Rice, Adams & Co. ( 1858 )

Wheeler, J.

The complainant bases his right to relief upon two grounds ; 1st. Newly discovered evidence ; 2nd. Fraud in obtaining the judgment.

In respect to the first ground, it might be a question whether the newly discovered evidence was not cumulative. Its object was to prove that this party was not liable to be charged in the original suit as a co-partner with Love, hisco defendant therein ; that the latter had no authority to bind him for the advances made by the plaintiffs. That was the main question at issue, to which the evidence was directed upon the trial. (3 Gr. & W. on N. Trials, 1046, 1052, 1053.)

But a clearer and more decisive reason for refusing a new trial on the ground of newly discovered evidence is the utter want of diligence in preparing for the trial. All the most material evidence of which the party seeks now to avail himself to obtain a new trial, he shows to have been in the possession, or within the knowledge of his co-defendant. Yet no excuse is shown for its non-production upon the trial, except that this party did not know of it. But he does not pretend ever to have made inquiry, or sought information, of any one until long after the rendition of the judgment. He was absent from the country before, and at, and long after the trial; and that must be the explanation for his saying he could not have known of the existence of the evidence. What was there to prevent him from knowing ? If his deed to Ballinger and Love and their conveyance to Sharp was material to prove that the partnership between himself and Love was, as he avers, “virtually dissolvedin 1849, did he not know that he could prove those facts by the deeds and testimony of Ballinger ? What prevented his being called as a witness, though Love, being a co-defendant, could not be examined ? What prevented him from obtaining the accounts which had been rendered to Love, and the other evidence in his possession, which he thinks would have been so material to his defence ? He professes to have known that the advances were charged to Love’s individual account, and that the plaintiff’s books would show the fact. Why then did lie not give notice to the plaintiffs to produce their books ; or prove by the accounts which had been rendered to Love, or other evidence, which it is impossible to doubt he might easily have . obtained, to whose account the advances were charged ? But instead of this he relied on the plaintiffs to produce their books of account, and thus furnish him with the evidence he desired. “ To depend upon one’s adversary to produce evidence, (it is said,) shows unpardonable negligence: (Id. 939.) The application should show that it was not for the want of due diligence that the evidence was not sooner discovered. (Id. 1026; 6 Johns. Ch. R. 482.) It should show what diligence the party used to obtain his evidencee, and prepare for trial. (Id. 1071.) The application does not show or pretend that any was used, or attempted to be used, or any excuse for the want of it; except that the party was absent from the country, and communicated to his attorneys what information he had. • But his voluntary absence from the country can be no excuse. The only affidavit of a witness to any newly discovered fact at all material, which is produced in support of the application, is that of a co-defendant; and there is no excuse offered for the failure to produce the affidavits of the other newly discovered witnesses. The witness Johnson, (to obtain whose evidence, an application was made to put off the hearing until a commissioner could be sent to take his testimony in Utah,) is averred to have been in this State at the time of filing the petition. It does not appear why his affidavit was not then obtained. “ The newly discovered evidence should be set out verbatim, just as it can be testified to in Court, and be subscribed and sworn to by each of the newly discovered witnesses,” (Id. 1071,) or, at least, a satisfactory excuse should, be shown for the omission, or absence of the affidavit. Nothing of the kind is attempted; and the application upon this ground was manifestly insufficient.

' Nor is it better supported on the remaining ground on which the party seeks relief; that of fraud in obtaining the judgment. The supposed fraud consisted in sueing, and obtaining a recovery of this party, upon a demand for which he was not legally (though it appears from the affidavit, on which he mainly relies, that he was equitably, in part, at least) liable;' and the failure of the plaintiffs to furnish evidence which would have manifested his freedom from liability; and the further fact that his co-defendant had furnished evidence against him of which he was not aware, and without being himself aware, or taking the trouble.to read the instruments he signed and know their import. It is scarcely necessary to remark upon the manifest insufficiency of allegations such as these to support the assumed ground of relief that the judgment was obtained by fraud. There is nothing shown to warrant a pretence that; the plaintiffs practiced any artifice or deception upon the complainant in obtaining the judgment or that they suppressed or withheld any fact or the evidence of any fact sought to be obtained by him ; or that" they were in possession of any fact or evidence, not disclosed upon the trial, of which he- was not aware, and could not have had the benefit by the use of the means which the law afforded him. There is, in a word, nothing shown to warrant the imputation that there was fraud practiced in obtaining the judgment. If broad, general and indiscriminate charges of fraud, combination and conspiracy were sufficient, without pointing to any single act or fact of a character to -warrant the charge; or if the having obtained a judgment which the adverse party would. undertake to show to be wrong and unfounded, or unjust, were sufficient to set aside a judgment, there would be few trials which would be final, and few judgments which might not be impeached and enjoined, or set aside for fraud. Law suits, as has been said, would indeed be immortal, while men are mortal. We have examined the case to which our attention has been called in Story's Reports, (Ocean Insurance Co. v. Fields, 2 Story, 59,) and perceive in it no analogy to the present.

It is needless to examine more in detail the evidence and grounds relied on for enjoining and setting aside the judgment. It manifestly appears by the plaintiffs' own showing, that although sued, and aware that he was sought to be charged as a co-partner with the other defendant, he remained abroad, made no preparation for trial, and gave no personal attention to the case, until after it had progressed to a trial, and judgment had been recovered-against him. Then, for the first time, he set about obtaining evidence, which, if it could have been of any avail, he ought to have obtained before the trial: “ It would be strange, indeed, if a party could wait till after .judgment, and then insist on a remedy or defence, which might have been available, had it been put forward at the proper time. Where a party goes into chancery after a trial at law, he must be able to impeach the justice and equity of the verdict ; and it must be upon grounds which either could not be made available to him at law, or which he was prevented from setting up, by fraud, accident, or the wrongful act of the other party, without any negligence, or other fault on his part.” (Id. 1489 ; Bronson, J., in Silas v. Jones, 1 Comstock, 274.)

The complainant manifestly did not present a case which entitled him to equitable relief. His petition was therefore rightly dismissed and the judgment is affirmed.

Judgment is affirmed.