Dutton v. Seevers

• Citation: 56 N.W. 398,89 Iowa 302
• Parties: DUTTON v. SEEVERS.
• Decision Date: 13 October 1893
• Court: Iowa Supreme Court

89 Iowa 302

56 N.W. 398

DUTTON

v.SEEVERS.

Supreme Court of Iowa.

Oct. 13, 1893.

Appeal from district court, Mahaska county; J. K. Johnson, Judge.

Action to recover for the support of a child. Verdict and judgment for defendant. Verdict set aside. Both parties appeal.Seevers & Seevers, for plaintiff.

G. C. Morgan and G. W. Lafferty, for defendant.

KINNE, J.

1. This is an action by the administratrix of L. K. Dutton, deceased, for recovery of compensation for keeping, boarding, and maintaining the child of Thomas Seevers. In 1876, Seevers married the daughter of L. K. Dutton, and the child in question was born to them July 8, 1877. When the child was six months old, the mother left her husband, and she and her father took the child to the father's home, where it was cared for and maintained by him until Dutton's death, in January, 1890. In 1881, Seevers and his wife were divorced, and in said action it was decreed that the mother of the child “shall have the custody, care, and control of said child, and shall stand charged with the support thereof, and that the plaintiff [in that action and defendant in this] shall pay the sum of three hundred dollars, which sum shall be in full of all alimony and support to defendant, [in that action,] and in full of support of said child.” It appeared that defendant had fully complied with the terms and conditions of the decree. There was a trial to a jury, and a verdict for the defendant. Plaintiff filed a motion for a new trial within three days after the return of the verdict, upon several grounds, among which is the following: “Third. The court erred in its instructions given to the jury numbered from one to eight, inclusive, and in giving each of said instructions, and every part thereof.” More than three days thereafter an amendment to said motion was filed, stating the following, among other, grounds for a new trial: “(12) The court erred in not instructing the jury on which party was the burden of proof to show whether L. K. Dutton expected to be paid for the support of said Eugene N. Seevers, or whether he expected to do so without compensation. (13) The court erred in not instructing the jury that the burden of proof was on the defendant to show that said L. K. Dutton supported said Seevers without compensation, and that he did not expect any compensation therefor. (14) The court erred in not instructing the jury that the burden of proof was on defendant to overcome the presumption of law that defendant was liable for the support of said Eugene N. Seevers. (15) The court erred in not instructing the jury that the presumption of law created a liability on the part of the defendant to support said Eugene N. Seevers, and that the burden of proof was on said defendant to overcome such presumption of liability.” When leave was asked to file this amendment to the motion, defendant objected thereto, on the ground that the same was not made or filed within three days after the rendition of the verdict. The objection was overruled, to which defendant excepted. On hearing on the motion, as amended, same was sustained upon the following ground only, viz.: “Motion for a new trial sustained on the ground that the court had failed to instruct as to a burden of proof as to expectation of L. K. Dutton.” Defendant excepted to the ruling, and plaintiff excepted to the ruling in failing to sustain the motion and amendment on each of the other grounds therein. Both parties appeal.

2. The defendant having first perfected his appeal, it will be first considered. The only question presented by it is the correctness of the rulings of the court in permitting the amendment to the motion for a new trial to be filed after the expiration of three days from the rendition of the verdict, and in acting thereon. Our statute provides that “the application for a new trial must be made at the term and three days after the verdict * * * is rendered, except for the cause of newly-discovered evidence.” Code, § 2838. It was held in Sowden v. Craig, 20 Iowa, 478, that under Revision, § 3114, which is substantially like section 2838 of our present Code, a motion for a new trial, filed within three days, might be afterwards amended, provided the amendment “was germane and proper to the object and purpose of the original motion, and could not in any legitimate sense be regarded as a new motion.” Tested by this rule, was the amendment properly allowed? The grounds stated in the original motion in substance were that the court erred in giving its instructions, in refusing those asked by plaintiff, and in the admission and exclusion of certain evidence. The ground of the amendment upon which the court granted a new trial was that the court erred in failing to instruct the jury that the burden of proof to show that the maintenance...