
    Mason v. Tremayne.
    
      New trial after term — False testimony by successful party or witness — Section 11631, General Code — Necessary to show conviction of party testifying falsely — Newly discovered evidence — Necessary to show evidence could not be produced at trial.
    
    Where a party seeks a new trial after term, upon the ground of false testimony on the part of the successful party or any witness in his behalf, pursuant to paragraph 10 of Section 11631, General Code, the record must affirmatively show that ordinary prudence could not have anticipated or guarded against such false testimony and that the guilty party has been convicted; if newly discovered evidence, material for the party applying, is urged as a ground for a new trial, it must be shown that such newly discovered evidence could not with reasonable diligence have been known and produced at the trial. In an absence of such showing, a new trial should be denied.
    (No. 19712
    Decided December 7, 1926.)
    Error to the Court of Appeals of Cuyahoga county.
    This is a proceeding in error to reverse the Court of Appeals of Cuyahoga county. The original action in the court of common pleas of that county was one for fraud and deceit, arising out of the sale of stock in the Middle States Rubber Company by E. C. Tremayne to Harris E. Mason. The affairs of the Middle States Rubber Company were being wound up by a receiver, and Mason charged Tremayne with having made certain misrepresentations with reference to the company, as a result of which Mason bought stock thereof, and, finding himself defrauded and deceived, sought to recover the money that he had paid for stock in the said corporation. Tremayne denied these charges of Mason, and filed a cross-petition in that action asking judgment against the plaintiff for money due, arising out of the transaction.
    Upon trial a verdict was rendered in favor of the defendant on his cross-petition. Motion for new trial was filed, which was overruled. A petition in error was filed in the Court of Appeals after 70 days, and was dismissed by that court upon motion, and this court overruled a motion to certify. Whereupon the plaintiff in error, Harry E. Mason, filed this proceeding by virtue of Section 11576, General Code, seeking relief after term, it being claimed that Tremayne had testified falsely as to the purchase of $10,000 worth of stock of the Middle States Rubber Company; that instead of being a bona fide stockholder of the company to the extent of a $10,000 investment, he actually bought from one of the directors $5,000 worth of stock for $2,750 and agreed to buy an additional $5,000 of stock from the company, but paid only $1,250 thereon; that Tremayne, having testified to the effect that he had purchased $10,000 worth of stock, influenced the jury upon the question of his good faith in the sale of the stock to Mason. It was also claimed by Mason that this testimony on the part of Tremayne was in fact false, and that such falseness was not discovered until after the trial in the original action, too late to take advantage thereof to secure a new trial in that cause. In the hearing before the court of common pleas a new trial was denied, and upon error prosecuted to the Court of Appeals this judgment was affirmed. Error is now prosecuted to this court to reverse the judgments of the courts below.
    
      Messrs. Turney & Sipe, for plaintiff in. error.
    
      Mr. Robert L. Carr, for defendant in error.
   Day, J.

Relief is sought after term in this cause by virtue of Section 11580, General Code, which provides:

“When, with reasonable diligence, the grounds for a new trial could not be discovered before, but are discovered after the term at which the verdict, report, or decision was rendered or made, the application may be by petition, filed not later than the second term after the discovery,” etc.

The gist of the claim of the plaintiff in error is that Tremayne gave false testimony, which, with reasonable diligence, could not be discovered until after the term at which the trial took place; that this false testimony was the cause of Mason losing his law-suit.

In order to avail himself of the same as a ground for a new trial, under Section 11631, General Code, certain elements must be found to exist, paragraph 10 of that section providing:

“When such judgment or order was obtained, in whole or in a material part, by false testimony on the part of the successful party, or any witness in his behalf, which ordinary prudence could not have anticipated or guarded against, and the guilty party has been convicted.”

It will be noted that this false testimony must be such that ordinary prudence could not have anticipated or guarded against it; and, second, that the guilty party must have been convicted. The alleged false testimony relates to the purchase of stock by Tremayne from J. J. Feicht, the president of the company, and the bill of exceptions discloses many references to the purchase by Tremayne from Feicht of the stock in question. And the record further shows that the said J. J. Feicht was on the stand and could have been asked questions concerning many of the things upon which the plaintiff in error now relies as being newly discovered evidence. This was a subject of discussion before the court of common pleas and it was the opinion of the trial court that heard the application for a new trial after term that the testimony of the defendant as given at the trial was not such a variance from the truth as to justify the court in opening up the case. It would therefore seem that this testimony on the part of Tremayne might have been attacked as false, and the claimed true condition of affairs unearthed at the original trial, and therefore the alleged new grounds do not bear the impress of newly discovered evidence within the exception of Section 11578, General Code, and the meaning and interpretation to be given Section 11580, General Code. However, in order to secure a new trial after term, under Section 11631, upon the ground of false testimony of the successful party or any witness in his behalf, the person so testifying falsely must have been convicted. This record fails to show any conviction in the premises, and the language of the General Code forbids relief until such showing is made. In denying this relief after judgment, upon the ground of newly discovered evidence of false testimony of the prevailing party, the court of common pleas and the Court of Appeals were right, and the judgment herein should be affirmed.

Judgment affirmed.

Marshall, C. J., Jones, Matthias, Allen, Kinkade and Robinson, JJ., concur.  