Cowan v. Smith, 35 Ill. 416 (1864)

April 1864 · Illinois Supreme Court

35 Ill. 416

Walter Cowan v. Ephraim Smith.

1. New trial—absence of witness—newly discovered testimony—affidavits required. A motion for a new trial, founded on the absence of a material witness, or upon newly discovered testimony, should be supported by the affidavits of the witness by whom it is proposed to prove the facts relied on; or, some excuse should be shown for not obtaining them.

Appeal from the Circuit Court of Harshall county; the Hon. Samuel L. Richmond, Judge, presiding.

This was an action of assumpsit instituted in the court below by Ephraim Smith against Walter Cowan. A trial resulted in a verdict for the plaintiff. The defendant, thereupon, moved for a new trial, upon the ground of the absence of a material witness, whose attendance he was endeavoring to procure at the time the trial came on. In support of his motion the defendant presented his own affidavit alone. The motion was overruled and judgment entered upon the verdict. The defendant appealed, and now assigns for error the refusal of the court to grant a new trial.

Messrs. Bangs & Shaw, for the appellant.

Messrs. Burns & Cummins, for the appellee.

Mr. Justice Beckwith

delivered the opinion of the Court:

After a verdict against the defendant, he moved for a new trial on the ground of the absence of a material witness. The overruling of this motion is now assigned as error. A motion for a new trial, founded on the absence of a material witness, or upon newly discovered testimony, should be supported by the affidavits of the witnesses by whom it is proposed to prove the facts relied upon; or, some excuse should be shown for not obtaining them. Cummins v. Waldren, 4 Blackf. 307; Denn v. Morrell, 1 Hall S. C. 382; Gibson v. The State, 9 Ind. 264; 1 Graham & Waterm. on New Trials, 210; 3 id. 1067, et seq. The motion in the present case was made solely upon the appellant’s affidavit, and it states no excuse for not procuring the affidavit of the witness. In this respect it was clearly insufficient; and the motion for a new trial made thereon was properly overruled.

The judgment of the court below is, therefore, affirmed.

Judgment affirmed.