Smith v. Cushing , 18 Wis. 295 ( 1864 )

By the Court,

Dixon, C. J.

We cannot say that the granting of a new trial was an abuse of the discretionary power vested in the circuit court. If it ought not to be granted on account of the absence of the witness Pierson, or because the plaintiff was negligent in seeking and procuring his testimony, still we think it should be granted on the ground of newly discovered evidence. It is true, in general, as decided by this court in Dunbar v. Hollinshead, 10 Wis., 505, that the party asking a new trial on this- ground must give the court the best evidence possible of the newly discovered testimony, that is, the affidavits of the newly discovered witnesses themselves to the facts to which they are ready to testify. But this rule is not without its exceptions, wisely adopted to meet the exigency of cases where a compliance with it becomes impossible. As was observed in that case, “ he must produce the affidavits of the witnesses themselves, or satisfactorily show why he cannot do so.” It appears to us that the plaintiff satisfactorily excuses himself for not producing the affidavit of Bodfish. The plaintiff’s affidavit was made in the state of Iowa. Bodfish, the newly discovered witness, resides at Cedar Eapids in that state. At the time of making the affidavit, Bodfish was absent from the state, and the plaintiff had been unable to find him or to procure his affidavit to be used upon the hearing of the motion. He states the facts to which he is informed and believes Bodfish will testify, namely, that the defendant admitted to him, Bodfisb, that be, defendant, was largely indebted to the plaintiff on account of tbe demand in suit. The plaintiff furthermore states that Bodfish had informed him by letter that he was in possession of information which he thought would be of great importance to the plaintiff in the action. These circumstances, it seems to us, sufficiently excuse the non-production of Bodfish’s affidavit. The plaintiff being unable to procure his affidavit or to obtain an interview with Bodfish personally, more full or direct proof of the newly discovered evidence could not reasonably be required.

Again, we cannot forget the misfortunes which seem to have attended the plaintiff’s action from the beginning — the misunderstandings of counsel, the non-attendance of his counsel at the place of trial, the absence of his most material witness, and above all the fact that judgment passed against him upon so important a claim without any investigation of the merits whatsoever. We think the order for a new trial should stand.

Judgment accordingly.