Tallman v. Becker

Citations

• 85 Ill. 183

Syllabus

<p>1. Chancery—new trial at law. A court of equity will only grant a new trial at law in cases of fraud, accident or mistake, and then only where the party applying for equitable aid is free from all negligence and has used the highest degree of diligence to prevent the fraud, accident or mistake.</p> <p>2. As a general rule, the refusal of a witness to attend, or his failure to testify to the truth when called, whether his purpose be to injure and defraud the party, or from want of memory, or other cause, does not form such accident or mistake as entitles a party to maintain a bill for a new trial at law. It is not every slight mistake or accident that will give a new trial.</p> <p>3. The accident or mistake must be unavoidable by the use of diligence by the party, and of such a character as to control without doubt the result of the suit, before equity will interfere to grant a new trial at law.</p> <p>4. Where the opposite party, by active fraud, deprives the other of evidence by preventing the attendance of witnesses, by suborning them, by destroying documents or papers not his own, or, by any such practices, deprives the other party of a legal right by fraudulent means, if such advantage has controlled the case and led to the judgment in his favor, and after the use of all proper diligence to prevent it, a court of equity will award a new trial at law.</p> <p>5. Where the evidence relied on for granting a new trial is merely cumulative, and not decisive in its character, a new trial will not be granted, and the rule is the same in equity as at law.</p> <p>6. Where a party goes to trial at law, without seeing a witness to refresh his memory as to a fact in the defense, and, after verdict against him, makes no effort to refresh the memory of the witness until after judgment, this will be such laches on his part as to preclude him from equitable relief on the ground of the subsequent recollection of the witness of the fact sought to be proved, and which the witnes