(dissenting). I -think this is the first case on record in which it has been ruled that because a client verified pleadings, prepared by his counsel, which contained inconsistent allegations, and at the trial failed to testify to the full measure of the allegations of-his -pleadings, a trial court should be held guilty *181of an abuse of discretion in refusing a new trial on the ground of newly discovered evidence, based upon affidavits plainly, and, I think, concededly, insufficient. The new rule thus introduced' into our Code of Civil Procedure is given a very broad foundation indeed, in the majority opinion, which says:
“It. thus appears that he verified a pleading that was false as an answer and false as a counterclaim. Even if jurors overlooked such matters, courts should set their seal of disapproval on such practice. It behooves litigants to be honest with the courts which they expect to stand as their protection against the dishonesty of others.”
The conclusion drawn from this premise is that the trial court “should have considered the motion for a new trial in the light of'the whole record.” A consistent application of this new rule will require this court, whenever it is of opinion that the evidence of the prevailing party is false or perjured, to hold the refusal of a trial court to grant a new- trial to- be an abuse of discretion. That this conclusion is justified is apparent from the fact that the majority opinion -is devoted almost entirely to a review of the alleged false and inconsistent statements of defendant in his pleadings, and in his evidence, together with a few brief and cursory allusions to the affidavits upon which appellant demanded a new trial upon the ground of newly discovered evidence. A statement of the contents of these affidavits, and a consideration of the former decisions of this -court, seem to me to mark -this decision as a practical amendment to our -Code of Civil Procedure. In substantiation of this view, I shall summarize with some care the statements in 'appellant’s affidavits and refer to decisions of this court.
The first affidavit is by appellant’s counsel, who swears that at the trial plaintiff “produced all the witnesses which he then knew of who had a knowledge in general of the facts, * * * and that he could- not with reasonable diligence have produced [naming the new witnesses whose affidavits are also given in support of the -motion] ; that one of the witnesses was out of the state at the time of the trial; that appellant was past 60 years of age and- his mind1 does not work fast.” Counsel also- swears, in substance, that plaintiff searched the whole country prior to the trial to find witnesses to testify for his case, and that none of the *182witnesses named could be found; that plaintiff used' the utmost diligence to find witnesses, and produced all he could think ■ of ; that if plaintiff had known that Dr. Putnam, and the two Fehlhofers (named as three newly discovered witnesses) could swear that he (appellant) was in Sioux Falls during February, '1916 (when a certain agreement was alleged by defendant -to have been made at appellant’s farm'), plaintiff would have had them at the trial; that at the trial defendant amended his answer to cover a counterclaim for services in 1913; that plaintiff had checks at home showing payment for the work done by defendant that year.
Appellant’s own affidavit is to the effect that he was in Sioux Falls during the whole month of February, 1916, under the medical care of Dr. Putnam, and was not at the place where the above-mentioned alleged agreement was made; and that the identical checks which paid respondent for the work done in 1913 were at his home near Sherman. The affidavit of Dr. Putnam is to the effect that appellant was under his medical care and treatment at Sioux Falls during the month of February, 1916. The affidavits of the two Fehlhofers are to. the effect that appellant boarded at their home in Sioux Falls during the month of February, 1916. The affidavit of Aanestad is that Braggman said to him that the corn raised, on the land in 1915 was no good, These are all of the alleged newy discovered witnesses. Not a single fact stated in these affidavits comes within the rule of newly discovered evidence.
It is perfectly clear that every fact and circumstance specified was within the personal knowledge of appellant, not only at, but long prior to, the time of the trial. In fact, it will be observed that appellant in his own affidavit does not attempt to say that he did not know before the trial that the witnesses named knew, and could testify to, the facts alleged. On the contrary, his own affidavit and those of the alleged new witnesses conclusively show that the facts to which they would ibe called to testify consisted of transactions and conversations in which appellant himself personally took part, and could not have been newly discovered. It may be conceded that some decision always may be found somewhere which may be cited as a precedent to sustain an extraordinary ruling, but judicial decisions will be searched in vain *183for a case. holding .that such evidence as this has ever been classed as newly discovered. For that reason, I cannot assume that my Associates intended to hold this was newly discovered evidence, or that appellant’s affidavits were sufficient to justify a new trial upon the ground of newly discovered evidence, nor that they were sufficient to convict the trial court of an abuse of discretion. Had appellant at the trial demanded a continuance, of the case on the ground of surprise, and the absence of evidence to meet new issues raised by amended pleadings, and appealed from an order denying such continuance, the question of abuse of discretion in refusing a continuance might have been presented for review. But that question is not in this case. It is settled in this jurisdiction that appellant cannot be permitted to take' the chances of.a verdict in his own favor in the absence of known material evidence, and thereafter plead surprise and demand a new trial upon the ground of newly discovered evidence. Wells v. Wells, 27 S. D. 257, 130 N. W. 780. The same rule has been applied by this court even in criminal cases. State v. Barnes, 26 S. D. 622, 129 N. W. 116; State v. Gregory, 31 S. D. 425, 141 N. W. 365. Neither is a mere want of recollection of facts, nor of the names of witnesses, sufficient to warrant the granting of a new trial. Hayne on New Trial and Appeal, § 92.
The amended answer also pleaded what amounted to an accord and satisfaction as to one of plaintiff’s causes of action. No assignment of error is made by appellant upon the granting of the amendment and the record discloses that the action was tried upon the issues made by the amendment, without objection to evidence upon the ground of relevancy, and the issues so made were submitted to the jury upon instructions not excepted to. Appellant’s first attempt. to raise any question upon the amendment is in his specification of error upon the motion for a new trial, that appellant did not serve or file the amended pleading until after the trial. It is settled in this court that such an Irregularity is not a ground for a reversal. The cause having been tried upon issues presented by an amendment properly allowed, the failure to serve or file the amended pleading could not be prejudicial to appellant. In Connor v. National Bank, 7 S. D. 439, 64 N. W. 519, this court said:
*184“It often happens, in the progress of a case, that the court allows one party or the other toi amend his pleading, and if the trial then proceeds on both sides as though such amendment were then anid there made, it ought ordinarily to be considered and understood as having been made; and it is too late to raise the objection, on review, that the pleadings do. not present the issues that, after the allowance of the amendment, they were treated as presenting.”
In Lumber Co. v. Lager, 26 S. D. 160, 128 N. W. 698, Ann. Cas. 1913A, 1128, this court said:
“Moreover, as evidence was introduced, without objection, to establish Tucker’s cause of action, it is now too late for appellants to assert the absence of a proper pleading. The defect, if it were shown to exist, could be cured, even in this court, by filing an answer to conform to the facts established by the evidence.”
The same principle is recognized in Totten v. Stevenson, 29 S. D. 71, 135 N. W. 715; Mo. River T. Co. v. M. St. L. R. Co., 34 S. D. 1, 147 N. W. 82; McLain v. Nurnberg, 16 N. D. 144, 112 N. W. 243; Id., 16 N. D. 138, 112 N. W. 245.
The allowance of this amendment and the presentation thereby of new issues are alluded to in the majority opinion, but I confess my inability to comprehend the reasoning upon which my Associates predicate the amendment, in part at least, as an abuse of discretion in refusing a new trial upon the ground of newly discovered evidence.
The order and judgment of the trial court should be affirmed.