(34 Kan. 404)

CARSON and others v. HENDERSON and others.

Filed December 4, 1885.


In an application for a new trial of a controversy between attaching creditors respecting the priority of their liens, upon the ground of newly-discov. ered evidence, it was claimed by the plaintiffs that since the trial it had come to their knowledge that defendants' claim was not due when the attachment suit was begun. In the petition and affidavit filed by defendants in the attachment suit, they stated that their claim against the debtor was due. No order of attachment in favor of the defendants was authorized or granted by the district court, nor by the judge thereof, as is required in an action upon a claim before it is due. After the attachment proceedings had been instituted, and two years prior to the trial of this case, the debtor in the attachment suit filed an answer to defendants' petition, and also a motion to dissolve the attachment, alleging that the defendants' debt was not due when the attachment suit was begun. Held, that this answer and motion were sufficient to put the plaintiffs upon inquiry in regard to when the defendants' debt was due, and as they could have obtained the new evidence from the defendants, their employes, or from their books, at any time within two years prior to the trial, as well as since that time, they have not used such diligence as will entitle them to a new trial.


Before a new trial will be granted upon the ground of newly-discovered evidence, it must affirmatively appear, among other things, that it was through no want of diligence on the part of those applying for the new trial that the new evidence was not earlier discovered and produced at the trial.

Error from Atchison county.

Jackson & Royse, for plaintiffs in error.

T. M. Pierce, for defendants in error.

JOHNSTON, J. This case was before the court in 1883 upon the question of priority between attaching creditors, when it was here adjudged that the attachment liens of the present plaintiffs were subsequent to the lien of the defendants, and the judgment of the court below was reversed. Henderson v. Stetter, 31 Kan. 56; S. C. 2 Pac. Rep. 849. Following immediately upon the reversal, Carson, Pirie, Scott & Co. and Wm. Ziock & Co. filed in the district court a petition applying for a new trial upon the ground of newly-discovered evidence, which they alleged could not, by reasonable diligence, have been discovered by them and produced at the original trial. A trial upon this petition was had before the court on August 2, 1884, when the application for a new trial was denied, and on this ruling error is assigned. In the action brought by C. M. Henderson & Co. against N. Stetter they alleged in their petition that their claim against Stetter was due and payable, and in the affidavit filed by them to obtain an order of attachment it was stated "that said claim is just, due, and wholly unpaid;" and the order of attachment was issued by the clerk of the district court as upon a claim that was then due and payable. The plaintiffs now claim that since the trial of the motion in this case, and on December 19, 1883, they first discovered evidence tending to show that the claim of C. M. Henderson & Co. was not due when the attachment suit was begun. Assuming that this testimony came to the knowledge of the plaintiffs since the former trial, that

it is material, and that it is not cumulative, it does not necessarily follow that they are entitled to a new trial. It has been repeatedly held by this and other courts that, before a new trial will be granted upon the ground of newly-discovered evidence, it must affirmatively appear that it was through no want of diligence on the part of those applying for the new trial that the evidence was not earlier discovered and produced at the trial. Swartzel v. Rogers, 3 Kan. 374; Smith v. Williams, 11 Kan. 104; Boyd v. Sanford, 14 Kan. 280; Mitchell v. Stillings, 20 Kan. 276; Clark v. Norman, 24 Kan. 515; Moon v. Helfer, 25 Kan. 139; Sexton v. Lamb, 27 Kan. 432; Board of Regents v. Linscott, 30 Kan. 241; S. C. 1 Pac. Rep. 81; Wilkes v. Wolback, 30 Kan. 376; S. C. 2 Pac. Rep. 508.

Was reasonable diligence exercised by these plaintiffs? Upon this question the court below found against them, and it appears to us from the record that the new testimony ought to have been known to the plaintiffs before the trial, and that no sufficient excuse has been shown for failing to procure it. It appears that the attachment suits of the creditors of N. Stetter were begun in December, 1879, after orders of attachment had been sued out by all the parties now before the court, and on January 26, 1880, N. Stetter filed an answer in the case of C. M. Henderson & Co., alleging that the goods and merchandise, for the price of which the action was brought, had been purchased on credit, and that the indebtedness was not due when the action was commenced. On January 29, 1880, Stetter filed a motion to dissolve the attachment issued at the instance of C. M. Henderson & Co. upon the ground that their cause of action against him had not accrued when the action was instituted. By this answer and motion the plaintiffs and all attaching creditors were put upon inquiry in regard to the maturity of the claim of C. M. Henderson & Co. Notwithstanding that their intention was thus challenged, it seems that but little, if any, effort was made by the plaintiffs to ascertain whether or not the claim was due. One of the counsel for the plaintiffs testifies that he took the deposition of N. Stetter, Max Stetter, Mrs. Stetter, and one Stein, who was clerking for Stetter, and endeavored to obtain some knowledge of the books of N. Stetter with reference to his purchases during the summer and fall preceding the failure, but that he was unable to get any trace or knowledge of the whereabouts of the books until about two months before the application for a new trial. It does not appear, however, that any inquiry was made of these witnesses respecting the claim of C. M. Henderson & Co.; nor does it now appear that the status of the claim could have been learned from Stetter's books. Failing to learn the condition of the Henderson claim from the books, it was their duty to have looked further. The information might have been obtained from Henderson & Co., or from their books, or from the employes who made the sale of the goods to Stetter, and who understood the terms of sale. Although more than two years intervened between the filing of the answer and motion of

Stetter alleging that the claim of Henderson & Co. was not due and the trial of this cause, yet no effort was made to obtain the desired information except the search for Stetter's books. Indeed, it Indeed, it may well be questioned whether the testimony now relied on can be regarded as newly discovered.

We notice that at the former trial the plaintiffs offered in evidence the papers in the case of C. M. Henderson & Co. against N. Stetter, and the record therein, and called the attention of the court to the fact that the answer set forth that the indebtedness was not due, and that the same fact was set up in the motion made by Stetter to dissolve the attachment; and also to the further fact appearing from the records that no order of attachment had been authorized by the district judge, nor the district court, as required by law, on a claim not due. For what purpose this testimony was offered is not apparent, as it appears that the plaintiffs relied upon other facts to establish the priority of their claim. Waiving the question in regard to whether the testimony was newly discovered, this action of the plaintiffs at least shows clearly that their attention was then specially called to, and that they must have known of, the denial that the defendants' claim was due when their action was begun and the attachment issued. Counsel for plaintiffs state that for some reason they were led to believe that the attachment of C. M. Henderson & Co. was dissolved in January, 1880, and that they did not learn otherwise until about the time that the motion was filed upon which the trial was had in this case. This is another fact which appeared from the record, and which they should have known. Even if this was a sufficient excuse for not learning of this evidence earlier, and if they could be held not wanting in diligence up to that time, there still remained time enough prior to the trial of the case in which to investigate and procure the evidence. The defendants' motion was filed on June 17, 1882, and the hearing thereon was not had until July 21, 1883. The new testimony might easily have been procured during that time; and if the time was not sufficient, a continuance of the hearing might have been obtained. The depositions of C. M. Henderson and Martin Howard, who had charge of the credit department of the firm of C. M. Henderson & Co., have been taken since the former trial, and the court found it to be probable that upon a new trial it could be made to appear by the evidence of these two witnesses that the indebtedness of N. Stetter to C. M. Henderson & Co. was not due when the action was commenced; and that the knowledge which the plaintiffs gained from these depositions might have been obtained from the defendants, or their books, or from their employes who had charge of the credit department of the firm, as easily before the trial as afterwards. The court also finds that by reasonable diligence the plaintiffs might and could have discovered and produced at the trial the evidence of C. M. Henderson and Martin Howard as to whether said indebtedness was due or not when the


action of Henderson & Co. was begun; and it seems to us that the testimony offered upon the application well sustains these findings. But plaintiffs say that they ought not to be held negligent for not taking the defendants' testimony, when the defendants had already alleged in the petition, and also stated in their affidavit for attachment, that their claim was due. In cases where the adverse party resorts to some fraudulent practices in order to mislead the other party, or to suppress the new testimony, the same strictness respecting diligence is not required of the applicant for a new trial. we are not convinced that the defendants deceived or intended to deceive the plaintiffs in respect to the time when their claim against Stetter was due. While admitting that the goods were sold to Stetter upon credit, they claim that by reason of the conditions upon which they were sold, and of the action of Stetter, the price of the goods became due at once. If, after receiving the notice imparted by the answer and motion of Stetter, the plaintiffs had applied to the defendants for an opportunity to examine their books, or for information regarding the terms of sale and the time when Stetter's debt was due, and access to the books had been refused by the defendants, and all reasonable effort to obtain the information had been defeated by them, there would be some force in the position insisted on. But although there was abundant opportunity, no such application or effort was made by the plaintiffs until after the trial; and when it was made, the information was obtained, it seems, without difficulty. We think that in any view that may be taken of the case, the plaintiffs cannot be held to have used such diligence in discovering and in procuring the new testimony as would entitle them to a new trial. judgment of the district court denying the application will therefore be affirmed.

(All the justices concurring.)


(34 Kan. 443)


Filed December 4, 1885.


The case of Solomon R. Co. v. Jones, 30 Kan. 601, 2 Pac. Rep. 657, referred to and followed.


Where an employe at work upon the construction of a railroad signs payroll receipts, such receipts are prima facie evidence of all the statements therein, but are open to explanation by the party giving them; and where such a party testifies that he did not read the receipts, or either of them, and had no opportunity so to do, because, at the time he signed them, there were too many men waiting to be paid off, and there was no time for him to read the receipts, it cannot be said, as a matter of law, that the receipts are conclusive evidence against the party giving them.



In an action against a railroad company to recover damages for personal. injuries, where one of the principal disputed questions is whether the plain

tiff, at the time of the injury, was in the employ of the railroad company sued, or of a contractor constructing the road, it is error for the court to permit the general question to be asked of plaintiff: "In whose employ were you at the time of your injury?" But where the witness, upon further examination, narrates in detail all the facts and circumstances connected with his employment, held, the error not material.


A letter to the superintendent of a railroad company, containing a brief statement of the injuries of a party, alleging that he was damaged $500, but rather than go to law would settle for $200 if the matter was closed up at once, written before the commencement of an action against the company by an attorney who afterwards appears in the cause for the plaintiff, is not evidence of the facts admitted therein, unless it be proved that the plaintiff authorized the letter to be written.


The testimony of a deceased witness at a former trial may be proved by any one who heard and can remember his evidence, and it is sufficient to prove the substance of what the deceased witness testified to on the former trial, and it is not necessary to prove his exact words.


Where an attorney, who was present at the former trial representing one of the parties in the case, is called to give in evidence the testimony of a deceased witness at that trial, he may refresh his recollection from the bill of exceptions, or read from the bill of exceptions purporting to contain the testimony of the deceased witness at the former trial, if he shows that he examined the bill and assisted in its preparation at the time it was made, and knew, when the matters therein contained were fresh in his memory, that the bill stated what the deceased witness testified to on the former trial. In such a case the testimony of the deceased witness embraced in the bill of exceptions, and sworn to be correct by a person present at the former trial who heard the evidence of the dead witness, goes before the jury in connection with his oral testimony. The correctness of the evidence thus presented may be disputed, and the jury must pass upon it.


While two employes were working the handles of a hand car upon the track of a railroad company, which car had been damaged by a severe collision with another hand car the day before, the handles at both ends broke at the same time. The breaks were within the iron rings or clasps circling the handles. In an action to recover damages, brought against the railroad company by one of the employes injured by the breaking of the handles, it was claimed by the employe that there was no proper examination or inspection of the handles after the collision by the servants or agents of the railroad company. The company, to establish that there was no necessity for putting the car through a rigid inspection after the collision, offered to prove by the foreman in charge of the car at the collision that he had no reason to apprehend that the handles had sustained any injury, and that he did not suspect that the handles had been injured by the collision. The evidence was rejected. Held, that in this there was no error, as the witness was permitted to testify as to all the facts relating to the handles, and to his own acts and the acts of the other parties on the car at and after the collision.


A trial court ought not to instruct or suggest to a jury that the servants or agents of a railroad company, who are called as witnesses, have any such interest simply because they are the servants or agents of the corporation as affects their testimony. There is no legal presumption against the testimony of the servants or agents of a railroad company simply because they are such servants or agents; and special instructions that they have an interest, or no interest, simply because they are such servants or agents sufficient to affect their testimony are wholly unnecessary.


If possible, the findings of a jury should be so interpreted as to support the general verdict, rather than give an interpretation which would overturn and destroy it.

Error from Mitchell county.

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