An action was originally commenced by the plaintiff in error to recover damages against one of the defendants in error herein, the Columbus Transfer Co., for the alleged negligent operation of an automobile resulting in causing her injury. After issue joined by answer and reply the case was submitted to a jury ending in a disagreement. Afterward a second trial was had and the plaintiff in error recovered a verdict and judgment against the said defendant in error, the Columbus Transfer Co., in the sum of $7,540, which the trial judge ordered reduced to the sum of $5,000. By proper proceedings had on the part of said defendant in error, error was prosecuted to the court of appeals of said county to reverse said judgment, which was by said court affirmed. Thereupon the plaintiff in error caused an execution to issue upon said judgment, and while the same was in the .hands of the sheriff of said county awaiting action therein, the said defendant in error, brought an action in the court of common pleas of said county against the plaintiff in error to vacate and set aside said judgment for the reasons set forth in the amended and supplemental, petition of the plaintiff in error filed herein, upon the hearing of which, after a motion and demurrer to the same were overruled, said judgment was by said court ordered vacated and set aside, and a temporary injunction was granted restraining the enforcement of the collection of said judgment and the levying of said execution issued thereon, to which "action of said court in vacating and setting aside said
While numerous errors are alleged in said petition in error for the reversal of the action of the court below, we will consider only the grounds of error especially urged upon the attention of this court.
The following questions are made upon the record: First, under which subdivision of Sec. 11361, G. 0., does said action for the vacation of said judgment fall, if under either? Secondly, if it falls under Subd. 10 of said section, then the contention of the plaintiff in error must prevail, because it is not claimed that there was any conviction for perjury of the successful party in securing said judgment but if it is held not to fall within the provisions of said Subd. 10 of said section, the further question arises, did the defendant in error make a proper and sufficient showing for a new trial upon the grounds of newly-discovered evidence to authorize the court below to grant the same ?
That the action begun in the court below is authorized, by Sees. 11631 and 11580 G. C., is conceded, and that said action was instituted within the statutory period as required by Sec. 11640 is also conceded, but the controversy here is not what particular statute meets and governs the first question raised, but what particular subdivision of such statute is applicable.
Among the causes enumerated for which a new trial may be granted, after the term at which it was made, are the following:
Section 11631-1. By granting a new trial for the cause within the time and in the manner provided in Sec. 11580.
Section 11631-4. For fraud practiced by the successful part of the successful party, or any witness on his behalf, which
Section 11631-10. (When such judgment or order was obtained,' in whole or in a material part, by false testimony on the part of the successful party, or any witness on his behalf, which ordinary prudence could not have anticipated or guarded against, and the guilty party has been convicted.
Without reviewing the allegations in the amended and supplemental petition which are the foundation of this proceeding, and the law which we think applies, we are content to state but
In this connection counsel for plaintiff in error refer to the case of Micheal v. National Bank, 84 Ohio St. 370 [95 N. E. 905; 38 L. R. A. (N. S.) 220], and contend that the rule of law announced in that case controls the case at bar. There the court
“The amended petition herein contained no allegation of fraud in the original action on the part of the bank or any one. It is not claimed that the bank perpetrated any fraud at any time on the court or on the defendants, nor that the verdict in that case was the result of fraud. There is no averment that there was any false testimony introduced by the bank.”
Here fraud is expressly charged as a result of a conspiracy ■and false swearing. Without further pursuing this branch of the case, it will be sufficient to state that investigation shows the decision in the case of Baldwin v. Sheets, supra, has not been reversed or modified, and applying the rule of law laid down in that case to the facts in the case before us, we are of the opinion that the action herein is one for a new trial under Subd. 4 of See. 11631.
Having determined that the action does not fall under Subd. 10 of said Sec. 11631, our next inquiry will be to ascertain whether or not the party here applying for a new trial has exercised that degree of diligence contemplated by the law in ■obtaining the newly-discovered evidence presented as a ground for such new trial.
In the enumeration of causes provided by statute for a new trial, Subd. 7 of Sec. 11576 G. C., as one of the grounds therefor, provides that:
“Newly-discovered evidence material for the party applying, which with reasonable diligence he could not have discovered ■and produced at the trial.”
A reading of the testimony offered in support of the application here made, assuming that the plaintiff in error and others apparently interested in the event of this suit made the state; ments attributed to them by what are designated as the detective witnesses, leaves no doubt in the mind of this court that such testimony is material to the issue made by the pleadings in the
Under Subd. 7 of said See. 11576 it must appear that the newly-discovered evidence for a new trial is not only material, but it must likewise appear that such evidence could not have been discovered before trial by the exercise of reasonable diligence. An examination of the testimony offered upon the hearing in the court below in this respect shows that the superintendent of the Columbus Transfer Co. soon after said accident sought interviews with parties, except the plaintiff in error, whom he supposed could and would give him information touching the incidents and circumstances of said accident, but it appears that they declined to so do. Beferring to pages 129 and 130 of the record, the said superintendent, after stating that he had interviewed the witnesses at the scene of the accident, and made an unsuccessful effort to interview others, was interrogated as follows :
“Q. I will ask you to state whether after that you made any efforts, and if so, what efforts you made, in order to ascertain the truth and the facts about the accident? A. I made a great deal of effort; I made all the inquiries I could, and talked with every body that had any connection with it, and tried to find out from the nurses at the hospital whether McCollum made any statement or not.
‘! Q. Did you talk with any of the doctors ? A. And with the doctors, Dr. Howell, and the internes at the hospital, the nurses and also with * # * I believe with Henry Morgan and the boy’s mother.
Q. With the exception of the information that you got from Mr. Stouffer, the Pendleton boys and Mr. McCoy as to statements that had been made to them relative as to who had driven the car, were you able to ascertain in any way? A. No, sir; positively not. ”
From the foregoing it appears that,said transfer company was not guilty of laches in endeavoring to ascertain the facts and. circumstances of the accident soon after it occurred, but on ■the contrary' it appears to have used reasonable diligence to that end.