October 5, 2012

John Colyer v. Langford's Admrs, Rockcastle, 1818



8 Ky. 237; 1818 Ky. LEXIS 66; 1 A.K. Marsh. 237

June 10, 1818, Decided

PRIOR HISTORY:  [**1]  Writ of Error to reverse a Decree of the Rockcastle Circuit Court. 

DISPOSITION: Decree affirmed, with cost.

COUNSEL: Hardin for plaintiff, Pope for defendant in error. 

JUDGES: (Absent, Judge Owsley.) 


 [*237]  The Chief Justice delivered the opinion of the court. (Absent, Judge Owsley.)

Colyer having obtained a verdict and judgment in an action of assumpsit, brought by him against Smith and Carson, as administrators of Langford, they filed their bill with injunction, praying for a new trial, on the ground of their having discovered material evidence since the expiration of the term at which the verdict and judgment were obtained, and the court below, on a final hearing, decreed a new trial, accordingly, from which decree Colyer has appealed to this court.

The decree, we are of opinion, is correct. Had the application been made by motion to the court, before the expiration of the term at which the former verdict was rendered, under the circumstances exhibited in the record, in this case, there could have been no doubt of the propriety of sustaining it: and, in general, where it is proper for a court of law to grant a new trial, if the application be made while that court has power to do so, it [**2]  is equally proper for a court of equity to grant a new trial, if the application be made on grounds arising after the court of law had ceased to have power to do so.

The materiality of the evidence discovered in this case in unquestionable. It consists, indeed, of the confessions of Colyer; and that is, in general, the weakest kind of evidence. Such evidence is, however, no doubt competent in a case of this sort, and its weight must depend upon the circumstances under which the confessions were made, and whether the weight to which it may be entitled is sufficient or not, must again depend upon the purpose for which it is adduced. The confessions of Colyer, relied on in this case, are proven to have been deliberately and voluntarily made,  [*238]  and to have been repeated at different times, and to different persons. And it appears that the evidence on which Colyer recovered the verdict on the trial at law was of the same character, consisting, principally, of declarations made by the intestate in his lifetime. Under these circumstances, we cannot doubt that the evidence of Colyer's confessions is entitled to such weight as is sufficient for the purpose of justifying the award [**3]  of a new trial.

Decree affirmed, with cost.

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