McCathran v. Columbus Transfer Co.

Citations

• 28 Ohio C.C. Dec. 217

Syllabus

<p>RELIEF AFTER JUDGMENT.</p> <p>Powell, Houck and Shields, JJ., of the fifth appellate district sitting by designation.</p> <p>1. Allegations of Conspiracy and False Testimony Sufficient to Support Petition for yacation of Judgment.</p> <p>A petition containing allegations of a conspiracy to secure judgment by means of false testimony, which false testimony was given at the trial and a judgment obtained which was based thereon, states a good cause of action for vacation of said judgment and the award of a new trial, “for fraud practiced by the 'successful party in obtaining a judgment or order.”</p> <p>2. Material Newly Discovered Evidence not Obtainable With Reasonable Diligence at Trial.</p> <p>Evidence of detectives of a transfer company against which an action was brought and judgment obtained by alleged fraudulent conspiracy of plaintiff and her associates averring and on trial fraudulently proving the negligence of one of the company’s chauffeurs, describing their visits to the scene of the accident and detailing conversations and acts of plaintiff and her companions (the newly discovered evidence partaking of the nature of confessional statements), while it should be received with caution, is material and its weight determinable by a jury; hence, where it appears that the superintendent of the company immediately after the accident, vainly sought interviews with, parties and witnesses at the scene of the accident, and after the death of one of. the company’s chauffeurs whom after his death plaintiff first disclosed as the one 'in fault (denied by the company), interviewed doctors, nurses and internes at the hospital where he died as to any statements made by deceased as to his participation in the accident, shows that the newly discovered evidence could not with reasonable diligence have been discovered and produced at the trial, and an order for new trial, will be affirmed.</p> <p>[Syllabus approved by the court.]</p>