The Redwood gazette. [volume] (Redwood Falls, Minn.) 1873-1940, 1896-04-09


party could move for new trial and
when that was denied, apply upon
writ of cOreno nObis for a new trial
upon the same grounds that that were
or might have been raised upon the
former motion, there would be no end
to litigation, and all the inmates of
the penal institutions of the State
would be petitioners for writs of
corem 1aobis-Freeman on Judgments,
394.
If the attorney for the prevailing
party was guilty of misconduct, it
was ground for new trial and could
have been raised on the motion for
new trial; and if the defendants at
torney was guilty of fraud or collusion,
that would have been a surprise that
would have entitled the defendant to
new trial. The defendant, however,
does not charge his attorney with any
acts of fraud except that he introduced
evidence which the defendant thinks
was improper, and that he neglected
to introduce other evidence which the
defendant thinks would have been to
his advantage, and that he did not
otherwise conduct the case as the de-
fendant thinks it should have been
conducted. Differences of opinion
between counsel as to the best mode
of conducting trials are not uncom-
mon, and such alleged errors do not
constitute grounds for a new trial.
Hilliard on New Trials, 551 and 552
The attorneys for the prosecution
and defence are men of high charac-
ter, and I am not convinced by the
petition and afidavits introduced by
the defendant that they were guilty Of
fraud or collusion. A party is not al
lowed on a writ of corenn nobis to
contradict or put in issue any fact di-
rectly passed upon and affirmed by
the judgment, but only some defect
in the execution of the process or some
default of the ministerial officers
Freeman on Judgments, Sec. 81; 46
Am. Dec. 259 (note). The principal
fact which the defendant seeks to
raise, is that no oath was administered
to him and that hence he is not guilty
of perjury. This is precisely the fact
that is affirmed by the judgment and
the Supreme Court finds that the de.
fendant expressly and by every impli
} cation admits it by his own evidence
So MINI. 43O.
The principle cases relied upon by
} the defendant in support of his mo-
tion are the case of Sanders VS.. State
} A Am. Rep. 29, and State vs. Cal
houn, 80 Pac. Rep. 3S. These were
both cases in which the defendant.
were so terrified by a mob that they
pleaded guilty to the charge agains
; them and were taken to the Stat,
prison to avoid lynching. The deci
sion in latter is based upon the deci
sion of the former. In the forme
case the court expressed doubt wheth
er the writ of corem nobis was tn
= proper remedy, and only granted i
! because an appeal or motion for nev
trial would have been unavailing TO
the reason that it appeared from tn
record that the defendant was con
victed upon his own plea of guilty
The case was one of extreme hardship
and the court granted the relief be
cause there was no other remedy. Tn
case at bar is entirely different. Th
, defendant has sought relief by mo
: ton for new trial and, in my opinion
: all the errors of fact and law of whicl
he now complains we're or might hav
been raised upon that motion.
> Even if it be true that the defend
ant. a practiciug attorney at law
knowingly subscribed to false aft
davit and used it for the purpose o
procuring a writ of attachment, tn
fact that the notary public neglected
to administer an oath does not rende
the defendant such a sufferer in tn
s cause of innocence and virtue that
8 court will grasp at an antiquated ant
obsolete common law remedy to affort
him relief on motion for new trial
.. Ordered, that the motion of the de
fendant be and the same is hereb
: denied.
3 Dated April l, 1896.
B. F. WEBER,
Judge of District Court,
Ninth Judicial District
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