Edmiston v. Garrison , 18 Wis. 594 ( 1864 )

By the Court,

Dixow, C. J.

We think the defendants’ counsel mistaken when he says that the verdict is unsupported by evidence. The evidence is not very clear, it is true, but if the jury found for the plaintiffs all the items testified to by the plaintiff Charles Fdmister, and then deducted the account of the defendants, for which no claim is made in the answer, still the verdict is supported. But the rule is, where the party seeks to set aside the verdict because it is unsupported by evidence, that the want of evidence must be clearly made out. Where the evidence is conflicting or doubtful, or where it is not clear to the court that the jury were wrong, the verdict will not be disturbed. Such is this case. We cannot say from the report of the evidence that the jury erred, or that any injustice has been done to the defendants. Besides, the bill of exceptions does not purport to contain all the evidence. The presumption is in favor of the correctness of the verdict until the contrary is shown.

The affidavits of jurors to their own misconduct cannot be received for the purpose of impeaching their verdict. 1 Gra. & Wat. on New Trials, 111, and cases cited.

A new trial on the ground of newly discovered evidence was properly ruled against the defendants. In the first place, the newly discovered evidence was merely cumulative, which is in general a sufficient reason for rejecting the application. But secondly, the defendants showed no diligence or effort whatever to procure the evidence. Applications of this nature are regarded with suspicion and disfavor. “ The presumption is that, by proper effort, the party might have discpvered the evidence and used it on the trial, and that his not having done so is owing either to intentional omission, or unpardonable neglect. To rebut this presumption, he must make out a case free from delinquency. His excuse must be so broad as to dissipate all surmises to the contrary. He must show that he was on the alert, but that, notwithstanding, the evidence eluded him. Before he can expect aid from the court, he must satisfy it that he has tried to help himself. If the least fault be imputable to him, he will ask for relief in vain.” 3 Gra. & Wat. on New Trials, 1026. If McLane, the newly discovered witness, was present at the time of the alleged settlement, it must be presumed that the defendant Jackson knew it, and that with proper diligence he could have found him, ascertained what he knew about the settlement, and produced him or his deposition in court at the trial. Yet Jadcsoris affidavit is totally silent upon this point. He does not say that he did not know that McLane was present, or that he had made any effort to find him. It-does not appear where McLane resided. It is fair to infer, perhaps, from the affidavits, that he lived in the immediate neighborhood, and that Jackson knew him well. If this was so, then the defendants are still less excusable. If he resided at a distance, so that the defendants could not reasonably have seen him or ascertained what he knew about the settlement, or if he was personally unknown to the defendants, then those facts should have been stated. As it is, the defendants cannot escape the imputation of negligence in not having prepared for the trial; and the motion, for this reason, was properly denied.

The motion to strike out the last count of the complaint was fully met by the affidavit of the plaintiff’s attorneys.

Judgment affirmed.