Franklin v. Lee

Decision Date26 November 1901
PartiesFRANKLIN et al. v. LEE.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from superior court, Vanderburgh county; John H. Foster, Judge.

Action by Lewis Lee against Robert Franklin and others. Judgment for plaintiff, and defendants appeal. Affirmed.J. E. Williamson and W. M. Blakey, for appellants. G. K. Denton, Posey & Chappell, and W. H. Richardson, for appellee.

WILEY, J.

Appellee was plaintiff below, and brought and prosecuted to a successful termination this action for possession of and to quiet title to certain real estate. One Daniel Lee owned the real estate in fee simple at the time of his death, leaving, him surviving, a widow, who was a childless second wife. After the death of Daniel Lee, his widow married appellant Robert Franklin, and died a short time after such marriage. Appellant claims that Daniel Lee died childless, and without legal heirs, and that upon his death his property, being the real estate in question, vested in his widow; and that upon her death, she being without heirs, he inherited from her, and took the whole estate. Appellee bottoms his right to the real estate in controversy upon the fact that he is the legitimate son of Daniel Lee by a former marriage, and his only heir at law. The mother of appellee, who is still living, has been married three or four times. Her first husband was a man by the name of Cobb, with whom she lived several years, when he abandoned her, and she never knew where he went, or what became of him. After her abandonment she claims that she was begotten with child by Daniel Lee, out of wedlock, and that the fruit of such illicit cohabitation was and is the appellee; that about six or eight months after appellee was born she and Daniel Lee were lawfully married by a minister in Louisville, Ky., where they both lived; and that ever after such marriage his father acknowledged and treated him as his son. It is argued by appellant, that, even if Daniel Lee and appellee's mother were married after his birth, and after his mother had been abandoned by her first husband, still such marriage was void, in the absence of proof that Cobb was either dead or had been legally divorced; and that, though such marriage might have taken place, and appellee's father may have acknowledged and treated him as his son, yet such facts would not make him the lawful heir of his father, and hence his property would not descend to him. There is some confusion and conflict as to the dates of the several marriages of appellee's mother and as to when he was born. So far as the record discloses, there is no Bible record of the marriage of appellee's parents. The parties to the action are all colored people, and the memories of many of the witnesses, who are also colored, seem to be very defective, and badly clouded by the lapse of years, for the main facts elicited by their evidence occurred many years ago. The cause was tried by a jury, resulting in a general verdict for appellee. With the general verdict the jury found specially as to certain facts by answering interrogatories propounded to them.

Appellant's motions for judgment non obstante veredicto and for a new trial were each overruled, and he has assigned such rulings as error. He has not, however, discussed the overruling of his motion for judgment, and has therefore waived his right to have it considered.

There are several reasons assigned for a new trial, and we will take them up in the order in which counsel have discussed them. The fifteenth reason for a new trial is based upon newly-discovered evidence. Before taking up the question, it may be important to state some facts upon which there is confusion. The evidence of appellee's mother is to the effect that she was married to his father at the residence of Henry Adams, who at the time was pastor of a certain church in Louisville; that after their marriage they went immediately to the home of one Lewis Smith, where they lived as husband and wife. Also that she could not remember just when she was married to Daniel Lee, but that it was some time in the fall of 1874; that appellee was about six months old when they were married; that after that Daniel Lee acknowledged and treated him as his child; that in fact Daniel Lee was his father. The material facts about the marriage of appellee's father and mother, their going to the home of Lewis Smith to live, their living there as husband and wife, and that Daniel Lee acknowledged and treated him as his son, are all corroborated by other witnesses. There is no direct or positive evidence of said marriage except the undisputed evidence of appellee's mother. There are some facts, however, disclosed by the record, which are strongly corroborative. Appellee's mother testified that no one was present at the marriage excepting the two contracting parties and the minister who performed the ceremony. The evidence shows that he is dead. The newly-discovered evidence, upon which appellant relies for a new trial, is set out in an affidavit by appellant, and relates to what Lewis Smith would testify to if a new trial should be granted. The Lewis Smith named in the affidavit is represented to be the same Lewis Smith at whose house appellee's father and mother lived after their marriage. The facts to which appellant says he would testify are: (1) That said Lee and appellee's mother never lived in his house as husband and wife. (2) That they were never, to his knowledge, married; that the date of the birth of appellee was June 14, 1876; that he was born in the home of said Smith; that up to the time appellee's mother moved to Chicago, she never, to his knowledge, claimed to have been married to Daniel Lee, and that she continued to live in his home until she removed to Chicago. The affidavit states that after this action was commenced appellant engaged the services of a friend in Louisville, who knew Lewis Smith, to confer with him, and learn what facts he could relating to the paternity of appellee and the marriage of his father and mother; that said friend did confer with Smith, and reported to appellant; that said Smith informed him that, on account of his being the husband of a sister of appellee's mother, he could not afford to render appellant any assistance, and expressed his opinion that the facts he knew would not be to appellant's interest, etc. The affidavit also shows that appellant employed an attorney in Louisville to assist him in procuring evidence, who interviewed Smith with a view to taking his deposition, and that he refused to impart any information to said attorney, etc. The affidavit also states that the appellant made inquiry from persons living in the neighborhood of Smith as to whether they knew any facts concerning the matters in controversy, and that he was unable to obtain any information. It is further stated that the facts stated in the affidavit within the knowledge of Lewis Smith came to appellant's knowledge since the trial of the cause, and within 24 hours of the time of his filing of the motion for a new trial; that Lewis Smith still lives in Louisville, without the jurisdiction of the court, and that he has not had time to procure his affidavit. He also states that by reasonable diligence he could not show that said Smith would have sworn to said facts before the trial, or that he could prove the same by any other witness. Recurring again to some facts disclosed by the evidence, it is important to state that one witness testified that when appellee's mother and father were returning from the minister's house, just after their marriage, she met them, and both spoke to her, and told her that they had been married. The same witness also testified that they went to the house of Lewis Smith, where they lived as husband and wife. Appellee also testified that since the first trial of the case he had seen a Family Bible, in which the date of his birth was recorded as being June 15, 1874. This is an important fact in considering one fact stated in appellant's affidavit in support of his motion for a new trial, and that is that Lewis Smith would testify that appellee was born at his house June 14, 1876. Such fact is important to appellant for the reason that appellee's father was married to the woman, who survived him, on March 16, 1876, which would antedate appellee's birth, as fixed by Smith. The pertinency of these facts will become apparent when we come to consider the question of newly-discovered evidence as a ground for a new trial. There are four well-established rules which should be applied in considering a motion for a new trial upon newly-discovered evidence: (1) That a new trial will not be granted on the ground of newly-discovered evidence where such evidence is merely cumulative, or corroborative of evidence given on the trial. Simpson v. Wilson, 6 Ind. 474;Dodds v. Vannoy, 61 Ind. 89;Marshall v. Mathers, 103 Ind. 458, 3 N. E. 120;De Hart v. Aper, 107 Ind. 460, 8 N. E. 275;Offutt v. Gowdy, 18 Ind. App. 602, 48 N. E. 654;Watts v. Moffett, 12 Ind. App. 399, 40 N. E. 533;Eddingfield v. State, 12 Ind. App. 312, 39 N. E. 1057;Richter v. Meyers, 5 Ind. App. 33, 31 N. E. 582;Westbrook v. Aultman, Miller & Co., 3 Ind. App. 83, 28 N. E. 1011. (2) Nor will a new trial be granted on the ground of newly-discovered evidence where such evidence is merely for impeachment, or in contradiction of evidence given at the trial. Green v. Beckner, 3 Ind. App. 39, 29 N. E. 172;Brittenham v. Robinson, 18 Ind. App. 502, 48 N. E. 616;Sullivan v. O'Conner, 77 Ind. 149;Martin v. Garver, 40 Ind. 351. (3) The party applying for a new trial for newly-discovered evidence must show diligence in attempting to procure it before the trial. Morrison v. Carey, 129 Ind. 277, 28 N. E. 697;Anderson v. Hathaway, 130 Ind. 528, 30 N. E. 638;Crumrine v. Crumrine's Estate, 14 Ind. App. 641, 43 N. E. 322;Lime Co. v. Mock, 14 Ind. App. 221, 42 N. E. 761;Watts v. Moffett, 12 Ind. App....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT