on March 4, 1949. The failure of the defendant to seek the assistance of the Court at that time was inexcusable. The explanations which the attorney for the defendant now advances are not convincing.
There is further evidence of the defendant's lack of diligence contained in the affidavits presented by the defendant. It appears from the affidavit of one John J. Lemken that on April 29, 1949 the 'Department of the Navy, Bureau of Naval Personnel' furnished the address of the witness Perkins to the attorney for the defendant. Thereafter the attorney for the defendant apparently made no effort to communicate with the said witness until October 25, 1949, when he addressed a letter to the witness at the address furnished by the Department of the Navy. This letter was answered by the said witness on November 14, 1949. It is apparent that the defendant was not diligent even after he had obtained the address of the witness, but delayed the matter further for more than six months.
This case was pending for more than two years before it was restored to the active trial calendar. It seems apparent that the exercise of reasonable diligence prior to March 1, 1949 would have enabled the defendant to either take the deposition of the witness or produce him in court at the trial. The litigant who takes no action to ascertain the addresses of his witnesses until the eve of the trial cannot be said to exercise reasonable diligence, especially where, as here, there was a period of more than two years in which the addresses of the witnesses could have been easily ascertained.
It is our opinion that the 'newly discovered evidence' upon which the defendant now relies could have been discovered prior to trial by the exercise of reasonable diligence. See United States v. Bransen; Christie v. Petrullo; Dunn v. Parker & Graham, Inc., all supra.
The Supreme Court of New Jersey in the case of Christie v. Petrullo, supra, 128 A.at page 854, in passing on a similar motion, stated: 'These rules of law must be strictly enforced. If not strictly enforced, it would open the door for litigants to withhold available testimony, and then, if the result of the trial was adverse, resort could be had under the guise of newly discovered testimony to obtain another trial in which the litigant could correct the mistakes made in the former trial and perhaps secure a different result. The aim of the law should be to force litigants to the fullest preparation of their cases before trial. This can best be accomplished by strictly enforcing the principles of law governing new trials.'
The motion for a new trial is denied.
'Nov. 14, -49 Loren L. Perkins Black Butte Rt. Cottage Grove, Ore.
Counselor at Law
921 Bergen Ave. J.C.N.J.
'Dear Mr. George:
'In answer to your letter of Oct. 25, 1949.
'Yes, I remember the accident at Palisades Park of July 1945.
'I was seated in the car behind the victim of the accident.
'He was riding backwards with-out using the safety strap I believe. He refused to face forward on the demand from the attendant of the 'Bob Sled,' but I can't remember what was said now. It may be in the statement I gave at the time of the accident.
'The victim went out of the front car at the top of the first run and was ran over by the first car & ended up under the second car, the one in which I was seated in.
'I believe he had been drinking quite heavy before the accident.
'I have to close now & go to work.
'I hope this can be of some use.
'Sincerely yours, '(s) Loren L. Perkins'
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