We think that the petitioner is not entitled to a rehearing upon the first allegation in the petition, viz., that the court misapprehended the grounds upon which his petition for a new trial was based. A restatement of those grounds at this hearing shows that they were fully considered and deliberately passed upon in the opinion given on the petition for a new trial.
The second allegation of cause for a rehearing embraces a motion for leave to file a statement of the evidence given at the original trial, so that the court may inspect it to ascertain whether injustice was done, and thereupon exercise its discretion to grant a new trial. To this the defendants object, that a report of the evidence cannot now be filed after the expiration of the year allowed by statute, Pub. Stat. R.I. cap. 221, § 8, such report not having been allowed as required by Rule of Practice No. 29; that the new matter proposed to be introduced was known to the petitioner before his hearing on the petition for a new trial, and having elected to have his hearing without the evidence, assuming that it *Page 638 could have been introduced, he cannot now make the absence of it a ground for another hearing.
We think that these objections are well taken. It has been repeatedly held that under the rule of the court, which has been in force for more than forty years, no motion or petition for a new trial based upon the evidence shall be heard, unless it be accompanied by a statement of the evidence which has been presented to the judge who tried the case, within the prescribed time, and allowed by him, or otherwise proved according to the statute. See Pub. Stat. R.I. cap. 220, § 17. Chafee v.Sprague, 15 R.I. 135; Peck v. Parkis, 8 R.I. 364; Olney v. Chadsey, 7 R.I. 224; Potter v. Padelford, 3 R.I. 162.
The purpose of this rule was to secure certainty in the report of testimony, by requiring it to be made while the matter was fresh in the minds of the judge and the parties and also to prevent a re-trial of the case in the court above in the attempt to show what the testimony was. While the recent reports of testimony by official stenographers now affords less reason for the rule than formerly, the court is unable to modify the rule on that account, because it has been made a part of the statute. Judiciary Act, cap. 31, §§ 6, 7. The petitioner had a year within which to present his petition for a new trial, but he does not bring himself within the rule in force for the first ten months of the year, nor within the statute at the time his petition was filed. This is sufficient to decide the present application.
But another objection is equally fatal, and it stands upon a higher ground. It is the one already stated that having elected to have his hearing without the evidence, he cannot now make the absence of it a ground for another hearing. Such was the decision in Hayes v. Kenyon, 7 R.I. 531, where it was held that the court will not entertain a second application for a new trial by the same party in the same cause upon a ground known to him at the time the former application was submitted. The reasons for this doctrine were fully set forth in the above case and they are equally applicable to a petition for a rehearing as to a petition for a *Page 639 new trial. See also Cudahy v. Rhinehart, 133 N.Y. 675. But the petitioner contends that he had no reason to introduce the evidence until the court said, in its opinion, that there was no proof of injury, hence injury would not be presumed from the mere fact of interest; and there being no record of the testimony, it might have been overwhelmingly in favor of the will, or at least, the presumption should be that it was sufficient. We think this excuse is without foundation. The petitioner assumed, on his petition, that he must show both interest and injury to be entitled to a new trial, but he argued that injury should be presumed from the fact of interest propter affectum; which is equivalent to saying that such interest being shown a new trial must follow. In denying this proposition we announced no new doctrine, but simply followed that which had been laid down inState v. Congdon, 14 R.I. 458. If, therefore, there were peculiar reasons to infer injury from the testimony they should then have been shown, the court having stated in that case the presumption which must be drawn from the absence of testimony.
We fail to see any ground upon which we should be authorized to grant a rehearing, and hence the motion must be denied.