
    The First Nat’l Bank of Shenandoah v. The Wabash, St. Louis & Pacific R’y Co. et al.
    1. 3STew Trial: facts justifying: discretion of court. The question of granting a new trial rests in the discretion of the trial court, which will not be interfered with unless abused; and in this case, where a sufficient showing was made that the prevailing party had introduced false testimony upon a material issue, which the defeated party could not then contradict, but could upon a new trial prove to be false, held that a new trial was properly granted.
    
      Appeal from Fremont District Cozirt.
    
    Wednesday, October 17.
    Action of replevin for certain grain. J. W. Allen & Co. intervened, claiming property in the grain under a purchase from the mortgagor executing the mortgage whereon the plaintiff bases his right to the grain. The railroad company disclaims any interest in the grain other than as a common carrier, the property having been delivered to it for transportation. The cause was tried to the court without a jury, and judgment rendered for plaintiff, which, upon motion of ah intervenor, was set aside, and a new trial granted. . From, this order, plaintiff appeals.
    
      Draper c& Thornell and James McCabe, for appellant.
    No appearance for appellees.
   Beck, J.

— I. The motion for a new trial was based upon the ground, among others which were not sustained by the court and need not therefore be stated, that false testimony •was introduced by tbe plaintiff for tbe purpose of deceiving tbe court!. The affidavits in support of tbe motion sbow surprise, and tbat, after its introduction, wbicb was toward tbe close of tbe trial, tbe intervenors were unable to contradict tbe testimony, for tbe reason tbat their witnesses bad left tbe court for their homes, wbicb were at distant places.

Tbe evidence complained of by intervenors, wbicb they bad no opportunity to contradict, was to the effect tbat tbe grain in question was subject to the mortgage, for tbe reason tbat the plaintiff bad made advances to tbe mortgagor on the security of tbe mortgage, wbicb covered after-acquired property. Tbe witness making this statement was. an officer of tbe plaintiff. Tbe intervenors showed to the court by affidavits of the mortgagor tbat be would testify to tbe effect tbat tbe grain was not to be beld subject to tbe mortgage, and tbe advances made tbe mortgagor were not upon tbe credit of the mortgage, but upon tbe credit of a bill of exchange. Upon this showing, tbe court granted tbe new trial.

II. "We think tbe ruling of tbe court was correct; at least, there appears to have been no abuse of tbe court’s discretion, in tbe absence of wbicb tbe order for a new trial cannot be disturbed. Tbe showing sufficiently establishes surprise, and a sufficient excuse for tbe absence of tbe witnesses by whom tbe intervenor proposed to establish facts contradictory of the plaintiff’s evidence. These facts would tend to establish tbat tbe mortgage was not a lien upon tbe grain.

III. Plaintiff insists tbat the ground upon wbicb tbe new trial was granted was not raised by tbe intervenor’s motion. This ground is tbat plaintiff introduced false testimony, wbicb surely was misconduct requiring a new trial. Code, § 2837. Tbe affidavits filed by tbe intervenors upon the motion tend to support tbe ground of tbe motion.

IY. It is argued tbat, as tbe mortgage covers after-acquired property, it was a lien upon tbe grain. But tbe evidence, wbicb tbe witnesses sbow they can introduce upon tbe new trial, tends to establish that, under the agreement of the parties, the mortgage was not to cover the grain, and that plaintiff’s advances were not upon the security of the mortgage, but upon a bill of exchange.

It is our opinion that there is no error in the ruling of the district court granting a new trial.

Affirmed.  