Aylmer v. Adams

Christianson, J.

This is an appeal from an order of the’ district court of Ward county granting a new trial for newly discovered evidence, The case was tried to a jury and a verdict returned in favor of the plaintiff for $1,785.46. Judgment was entered pursuant to the verdict on March 14, 1913. Several affidavits were submitted ill support of the motion for new trial. The newly discovered evidence is set forth in the affidavitt of McKenzie St. Clair, a witness who testified in behalf of the plaintiff upon the trial of the action. This affidavit is *518 as follows: “McKenzie St. Clair, being first duly sworn, deposes and says that be resides at Minneapolis, Minnesota, and that be is acquainted with tbe plaintiff and the defendant in the above-entitled action; that he remembers the transaction in his office in Minneapolis, Minnesota, at the time the plaintiff and defendant were both in his office at the time the purported note was alleged to have been signed by O. O. Adams, and that he is the identical party whose name appears as witness on said ‘Exhibit A;’ that plaintiff, R. Aylmer, at the time mentioned, had desk room in affiant’s office; that a few days prior to the purported date of the purported note, ‘Exhibit A, both the plaintiff and defendant were in affiant’s office, and went from there- to Iowa for the purpose of completing a trade of some land for some horses, and that on or about the date of said ‘Exhibit A’ they had some conversation in affiant’s office, but so far as this affiant overheard the conversation between the plaintiff and defendant, there was no note mentioned at this time, either by the plaintiff or defendant, but after they had been in conversation for a short time the plaintiff laid the paper ‘Exhibit A on affiant’s desk, and asked him to sign same; that when the paper was laid on affiant’s desk he took up his pen and signed his name; that he did not notice, and does not now know, whether the name of O. O. Adams was ■signed on said paper at the time he signed his name thereto; that during the time the plaintiff and defendant were in his office he saw the defendant, O. O. Adams, sign one paper, and that he did not see him sign any other paper, and that he did not at that time sign more than one paper; that on that date affiant had been around the city of Minneapolis quite a good deal, and had, at that time, drank considerable liquor, and was not in a position to observe closely, and because of his condition he signed ‘Exhibit A’ without knowing whether the name of some other person was signed thereto at that time; that after signing his name to said paper he got up and left the office and left the paper lying on his desk; that affiant is not physically strong, and that liquor has the effect of making him very careless and destroys his power of observation, and when in that condition from drink, he is liable to and does do things without thought and without the proper precaution, and very often to his own material and serious detriment, and that in such condition at one time a bill of sale was presented to him for signature, and without observing what it was because of his condition from drink, he *519 signed said instrument and thereby disposed of $300 worth of property without consideration, and which he did not in any way intend to sell; that in a conversation with the plaintiff, E. Aylmer, because of the fact that the defendant, Adams, was going to Minneapolis to complete for him a trade in which this affiant was interested, affiant asked Aylmer regarding this man Adams, and whether or not he was acquainted with him, to which plaintiff replied'that very few men were better acquainted than he and Adams, and that at one time, he, Aylmer, had charge of Adams’s business, and that Adams was in the habit of handing him his check book, and he, Aylmer, drew checks and signed Adams’s name thereto; that at the time ‘Exhibit A’ was dated, the plaintiff and defendant had returned from Iowa, and affiant asked them in regard to the trade, and they told affiant that the trade had been made, and affiant was observing as far as he possibly could what took place in the office at that time, because he was interested as agent in the completion of the trade of the land for the horses, and that he watched to see what papers were signed, and that his observations along that line were as carefully made as possible, and that at such time O. O. Adams signed his name but once.

“That an examination of the ‘Exhibit A’ shows that the word ‘eight,’ which was printed in said blank, was erased, and the word “six” written therein in ink, and affiant does not know whether said change was on the paper at the time he is alleged to have signed his name on said purported instrument or not; that affiant saw the contract made between the defendant and E. D. Garner relative to the trade of land for horses, and that under said contract there was to be nothing completed until the following March,, and that there was nothing in said contract making it necessary for the execution of ‘Exhibit A,’ or any other notes, at the time said note ‘Exhibit A’ is dated.

“That reference is made to the paper hereto attached marked ‘Exhibit A,’ which purports to be the photograph of said alleged note, ‘Exhibit A’ used in said action.

“Affiant further states that the facts herein stated were not stated by him prior to the said trial, nor prior to the time he gave his deposition in Minneapolis; that prior to giving his deposition for said action, he had not since talked with either Mr. Adams or with the attorneys for Mr. Adams, and that in giving his • deposition he referred to those *520 things only about which he had been interrogated, and that since said trial he has had a conversation with the attorneys for the defendant, and during said conversation for the first time told the facts stated in this affidavit.”

A motion for a new trial on the ground of newly discovered evidence is addressed to the sound judicial discretion of the trial court, and the appellate court will not interfere unless manifest abuse of such discretion is shown. And the appellate court is more reluctant to interfere in a case where a new trial has been granted than where it has been denied. This rule is so well settled and elementary that it is unnecessary to cite any authority in support thereof. In fact, appellant’s counsel concedes that the sole question for determination on this appeal is whether or not the trial court grossly abused its discretion in ordering the new trial. No statement of the case was settled, hence, there is no opportunity for this court to ascertain what testimony was produced upon the trial of the action, with the exception of the testimony of St. Clair and two other witnesses, which was taken by deposition. The trial judge, however, had both seen and heard the witnesses, and was familiar with their testimony. He was also familiar with all the proceedings had in the action, and while it is somewhat difficult for this court to see that the proposed additional change in the testimony of the witness St. Clair is of sufficient importance to warrant a new trial, or that the defendant acted with the required degree of diligence, still these matters were presented to the trial court for determination, and he was in better position to decide these questions than in this court. This case has been tried but one time. A different rule might apply if there had been more than one trial. Under all the circumstances we do not feel justified in saying that the trial court manifestly abused its discretion in granting a new trial, and the order appealed from is therefore affirmed.