The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1910-06-16
new EVIDENCE IMPORTANT
Judge Belden Hands Down an Opinion
Granting the Motion of the Attor-
ney For the Plaintiff for New
Trial

Judge Z. B. Belden fled with the
Clerk of the Circuit Court late Tues
day afternoon decision on the mo-
ton of the attorney for the plaintiff in
the suit of Anton Munko VS.. Allen Cole
in which the plaintiff is granted new
trial Of the case. The new trial is
granted on the grounds of newly dis
covered evidence. The case grew out
Of the riots at the Allen tannery dur
ing the strike of year ago Munko
was one of the men shot and alleging
that Cole fired the shot he demanded
damages to the amount of $4,000 The
case was tried at this term of the Cir
cult Court and the jury returned a
verdict for Cole. In granting new
trial in the case Judge Belden says:
"The evidence offered by plaintiff
upon his motion for a new trial may be
cumulative in degree, but it is not
regarded by the court as merely eumu-
lative. Even though the newly dis
covered evidence were only cumulative,
that is, merely more of the same kind
as was offered on the former trial, still
it appeals to the court so strongly
that it reasonably appears that the
true situation and facts were not de-
termined by the former trial, and that
the newly discovered evidence would
be very likely to change the result
Truth and justice is the ultimate end
sought by the courts, and, in the exer-
else of the broad discretion properly
vested in them, they not infrequently
grant new trials in the interest Of jus
tice, and no consideration of technical
tiles Or strict construction will oper-
ate against the exercise of such discre-
ton.
The Supreme Court of Wisconsin has
held (Anderson VS.. Arpin Co., 131 Wis.
81, 53) that additional evidence tend
ing to prove the facts in relation to
which evid 9nce has been adduced is not
necessarily cumulative; and that, even
though the newly discovered evidence
is only cumulative, still the court may
grant new trial (Clithers VS.. Fenner,
122 Wis. $500.
With regard to the exercise of due
diligence, it is not considered fatal
thereto if one has not exhausted all
means or resources that could possibly
have been conjured, or failed to antiei-
pate everything that might subse-
quently occur or come to light.
The court is of the opinion that the
evidence offered on this motion as new
ly discovered is such, that sufficient
and reasonable excuse is shown for not
having discovered and produced it up
on the former trial, that it is material,
that it would probably change the re-
suit upon another trial, and that gen
eral considerations of fairness and
desire to ascertain the truth require
another trial.
The granting of a new trial is very
largely discretionary with the trial
court. To refuse a new trial in this
case would be an abuse of discretion.
No grounds other than the newly dis
covered evidence are considered sufi-
cient reason for granting a new trial,
excepting as herein stated.
The plaintiff IS motion for a new trial
is granted for the reasons herein
stated. Payment of the taxable costs
of the former trial necessarily follow
as condition.
Defendants several motions are de-
MED"