Pyle v. Herring

Stevens, J.

*649

3. New trial: procedure to pro- or petition (?)

*648 T. On bghalf of appellant, it is argued that an application for new trial after three days must be made by petition, and not by motion. Appellee practically *649 concedes this to be the rule, but contends that the motion met all the purposes of a petition, was not objected to by appellant, aU(j was s0 treated by counsel and the court; and that appellant waived the right to object to the form of the application.

The form of the application was not questioned by counsel for appellant, and, as the allegations thereof substantially conformed to the requirements of a petition for new trial on the ground of neiyly discovered evidence, it was properly treated as such by the court. Callanan v. Aetna National Bank, 84 Iowa 8 ; Heim v. Resell, 158 Iowa 356 ; Hunter v. Porter, 124 Iowa 351 ; Wilson v. McCutchen, 138 Iowa 225 .

2' cedure^Vi-o1-10" oSr%tmon°s ovidonc“n oI waiver IT. The point is made by counsel for appellee that appellant's abstract does not correctly and fully present the record in the court below. The specific denial of appellant's abstract relates to the evidence offered upon ^1<?’ trial after the jury had returned a verdiet in favor of appellant. None of this evidence is incorporated in appellant’s abstruct, but appellee has filed an additional abstract containing the same. The alleged newly discovered evidence consisted of the photographs and the testimony of several witnesses introduced upon the trial in behalf of Herring. The only record of the proceeding upon the hearing of the petition for a new trial is that of the ruling of the court sustaining the same, and the exception of counsel for appellant thereto. It is not claimed that the photographs, the reporter’s shorthand nqtes, or other testimony, were offered upon the hearing of the petition, nor that counsel for appellant agreed that the same should be considered in evidence, or treated by the court as having been offered; nor is there anything in the record from which such agreement or consent thereto on the part of *650 counsel for appellant may be inferred. Indeed, both the abstract of appellant and the additional abstract of appellee are wholly silent as to the proceedings upon the hearing of the petition, except as above stated. The affidavits attached to the petition contained no statement of the alleged newly discovered evidence.

This court, in Heim v. Resell, supra, held that:

“When an unsuccessful party desires to secure a new trial on the ground of newly discovered evidence, by a proceeding instituted otherwise than within three days, as provided in Code Section 3756, he must support his allegations by evidence, and that affidavits which might have been received on a motion for a new trial, died within three days, are not competent or sufficient in themselves to sustain his allegations.”

See, also, Carpenter v. Brown, 50 Iowa 451 ; Markley v. Owen, 102 Iowa 492 .

It was incumbent upon the plaintiff to offer the evidence relied upon as in an ordinary proceeding, so that the court could determine whether the same was cumulative, material, or competent to establish any issue in the case. Town of Manson v. Ware, 63 Iowa 343 ; Heim v. Resell, supra.

Had affidavits or secondary evidence been offered, and the defendant failed to object thereto, he would have waived the right to thereafter complain because the best evidence had not been produced. This is the effect of the holding in National St. Bank v. Boesch & Son, 90 Iowa 47 , cited by counsel for appellee. But the alternative of objecting to inadmissible testimony or waiving such objection was not presented, as no evidence of any character was offered upon the hearing. Surely, counsel for appellant was under no obligation to demand the introduction of evidence to sustain the allegations of plaintiff’s petition, but had the undoubted right to await the offer thereof, and then object thereto, *651 if they desired to do so. The point presented is not one where counsel has neglected to object when objection should have been made, and permitted their adversary to introduce improper testimony, but a situation in which no evidence was offered.

3. Evidence : judiciai notice: evidence re-d eeived. III. But it is also contended by counsel that the duly certified official shorthand report of the trial, when filed in the office of the clerk, became a part of the record in the case, and that the exhibits, which were ' ’ a part of the record, and the official shorthand notes, were referred to in the petition f0r new trial, and by such reference specifically made a part thereof, and that the trial court would take judicial notice thereof.

. While it is true, as claimed by counsel, that the trial court is presumed to know what occurred during the trial, yet it was held, in Baker v. Mygatt, 14 Iowa 131 , that it could not take judicial notice of the record in another case, even though the judge in fact remembered the contents of such record; while the Supreme Court of Maryland, in Matthews v. Matthews, 112 Md. 582 ( 77 Atl. 249 ), held that, ' on the second hearing of a divorce case, the court could not take judicial notice of the record of the former proceeding. See, also, Streeter v. Streeter, 43 Ill. 155 . The Supreme Court of West Virginia, in State v. Davis, 68 W. Va. 142 ( 69 S. E. 639 ) held that a criminal court could not take judicial notice of a former conviction, even though the same occurred on a previous day of the same term. This court, in Constantine v. Rowland, 147 Iowa 142 , which was ’an action for damages on an indemnifying bond in an attachment proceeding, held that th`e court could not take judicial notice of the statement in the petition in the attachment suit that defendant was a nonresident of the county where the action was brought. In the following cases, it was held that, while a court will take judicial no *652 tice of its own records, it will not, in one case, take judicial notice of the record in another case: Fassler v. Streit, 92 Neb. 786 ( 139 N. W. 628 ) ; Anderson v. Cecil, 86 Md. 490 ( 38 Atl. 1074 ) ; Hall v. Cole, 71 Ark. 601 ( 76 S. W. 1076 ) ; Loomis v. Griffin, 78 Iowa 482 ; Haaren v. Mould, 144 Iowa 296 ; Matthews v. Matthews, supra; (Grace v. Ballou, 4 S. D. 333 ( 56 N. W. 1075 ) ; McCormick v. Herndon, 67 Wis. 648 ( 31 N. W. 303 ) ; McNish v. State, 47 Fla. 69 ( 36 So. 176 ) ; Wellman v. Hoge, 66 W. Va. 234 ( 66 S. E. 357 ) ; O’Connor v. United States, 11 Ga. App. 246 ( 75 S. E. 110 ) ; People v. Carr, 265 Ill. 220 ( 106 N. E. 801 ) ; Keaton v. Jorndt, 259 Mo. 179 ( 168 S. W. 734 ) ; Streeter v. Streeter, supra. The Supreme Court of Arkansas, 'in Murphy v. Citizens’ Bank, 82 Ark. 131 ( 100 S. W. 894 ), held that the court could not take judicial notice of its own records in other cases pending therein, even between the same parties. It has been held, in a garnishment proceeding, that the court will take judicial notice of the judgment rendered in the principal case. Texas & P. R. Co. v. W. C. Powell & Son, (Tex.) 147 S. W. 363 . In Bunting v. Powers, 144 Iowa 65 , it was held that the court would take judicial notice of the decree claimed to have been violated in' a contempt proceeding.

The directed verdict was returned by the jury on January 11, 1916, and on the same day, judgment was entered thereon in favor of appellant. Defendant, when the verdict was returned, filed, and judgment entered, ceased to be a party to the further proceedings, ana was not required, for any purpose, to take notice of the further progress of the trial. The jurisdiction of the court had terminated, for all purposes except to pass upon a motion for new trial, filed within three days after the verdict. Jurisdiction to pass upon a petition for new trial upon the ground of newly discovered evidence, filed more than three days after the verdict, could only be had upon *653 notice to the adverse party. Hawkeye Ins. Co. v. Duffie, 67 Iowa 175 ; Owen v. Smith, 155 Iowa 463 ; Hamill v. Joseph Schlitz Brewing Co., 165 Iowa 266 ; Loos v. Callendar Sav. Bank, 174 Iowa 577 ; Scott v. Scott, 174 Iowa 740 ; Kwentsky v. Sirovy, 142 Iowa 385 ; Todhunter v. De Graff, 164 Iowa 567 ; Willson v. District Court, 166 Iowa 352 ; Des Moines Union R. Co. v. District Court, 170 Iowa 568 .

Numerous of the above-cited cases hold that the court cannot take judicial notice of the record or proceedings in the same case tried at a prior term, even though the trial judge personally remembers the record in detail. In Heim v. Resell, supra, the doctrine that it is incumbent upon the moving party to present the newly discovered evidence upon the hearing of a petition for new trial, is clearly and emphatically stated. The record does not disclose that any evidence, competent or otherwise, of the alleged newly discovered evidence was offered or before the court upon the trial of the petition. The reference to exhibits and shorthand notes in the petition, making the same a part thereof, was not different from a like reference thereto in pleading generally. The court could not take judicial notice of the evidence offered upon the trial of the remaining defendants, after verdict had, by direction of the court, been returned in favor of appellant.

4' cre«onBofL' flis’ court' has^n'o iy. It is true, as claimed by counsel, that the trial court generally exercises large discretion in passing upon a motion or petition for new trial, and this court will rarely interfere therewith'; but it cannot be said that this rule applies to cases where the petition, based solely upon the ground of newly discovered evidence, is supported by no evidence thereof. The court can then exercise no discretion whatever: the petition must be denied,

Other matters urged are without controlling merit; and it is our conclusion that the petition for new trial *654 should have been overruled, and the judgment of the court sustaining the same is reversed, and this cause is remanded for such further proceedings and hearing upon the petition for new trial as may be in harmony with the opinion.— Reversed and remoulded.

Gaynor, 0. J., Ladd, Weaver, Evans, and Preston, JJ., concur.