Matis v. Yelasich

• Citation: 126 Ind.App. 287,132 N.E.2d 728
• Decision Date: 06 March 1956
• Docket Number: No. 18761,18761
• Parties: Margaret MATIS, Appellant, v. Rudolph YELASICH, Appellee.
• Court: Indiana Appellate Court

Page 728

132 N.E.2d 728

126 Ind.App. 287

Margaret MATIS, Appellant, v. Rudolph YELASICH, Appellee.

No. 18761.

Appellate Court of Indiana, In Banc.

March 6, 1956.

Louis H. George and John Kappos, Gary, for appellant.

Morris Chudom, Gary, for appellee.

KENDALL, Judge.

Action by appellant to have appellee determined to be the father of her child, born out of wedlock, and to provide for the expenses and care as provided by statute.

Trial by court resulting in finding in favor of appellee in that he was not the father of such illegitimate child.

Motion for new trial contended that (1) the decision was not sustained by sufficient evidence and was contrary to law; (2) abuse of discretion of the trial court in preventing appellant from having a fair trial; (3) newly discovered evidence; (4) error of law occurring at the trial.

Specifications two and four are not argued in appellant's brief; neither are authorities cited in support thereof, and are, therefore, waived.

The assignment of errors are, (1) the overruling of the motion for new trial; (2) error of court in reversing its order granting appellant a new trial; (3) error in denying appellant's motion to strike out and expunge the order denying new trial.

The first specification of the new trial motion presents no question since the burden of proof was upon appellant.

The evidence reveals that appellant was twenty-six years of age and unmarried; that she had one other illegitimate child, four years of age. She testified that the appellee was the father of the first child; that no proceedings were had for the determination of parenthood of the first child, which child she later permitted to be adopted; that the child concerned in this proceeding was born June 16, 1951; that she had gone with the appellee off and on for approximately six to seven years; that the child was born prematurely, said birth occurring in the eighth month.

Appellant said she became pregnant October 23, 1950; that she saw appellee in November, 1950, and told him she was pregnant, at which time he said that he did not think that she was, but if she was, he was not the father of the unborn child. Appellant testified that in October, 1950, she did not go with any other man.

A witness for appellee testified that appellant had had two miscarriages and one abortion; that appellant had told the witness she did not know who to blame for her downfall, referring to the second child, or who the father of the child was; that appellant admitted to the witness of having intimate relations with her brother-in-law, which was denied by appellant. The appellee testified that the only act of intimate relations he ever had with appellant was in January, 1951, (child born June, 1951); that appellant had likewise told him she had been intimate with her brother-in-law; that appellant told appellee that she had been intimate with other men, and appellee testified that he denied being the father. The appellant admitted having an abortion in April, 1950, but denied having miscarriages although she testified she had taken certain pills. The evidence describes the frequency of illicit acts as described by appellant.

Appellant contends that the decision of the trial court is contrary to law because of lack of evidence. She argues that it is reasonable to infer that the appellee was the father of the child since the parties had gone together off and on for a long period of time and since there was no evidence that she had intimate relations with anyone else. The evidence before the trial court in this respect was conflicting. The court heard all of the evidence and had an opportunity to observe the parties and their demeanor.

One of the most firmly-established rules of law by which this court is unalterably bound is that conflicts in the evidence and the weight thereof are to be determined by the trial court, and that function having been performed by the trial court, this court cannot substitute its opinion for that of the trier of the facts. To do otherwise, we would have to weigh the evidence. Newton v. Cecil, Ind.App.1955, 124 N.E.2d 713, and cases cited therein. The judgment therefore was not contrary to law.

Appellant filed her affidavit of newly-discovered evidence with her motion for new trial, attaching thereto certain affidavits of other parties to the effect that the affiants therein had personal knowledge that the appellant had dates and gone out with appellee on many occasions; that appellee took her out in his car on October 23, 1950; that she had no other dates with any other man than appellee. Such affidavits were merely cumulative. All the evidence which appellant claims to be newly discovered existed at the time of trial and could have been produced by the exercise of due diligence which a party litigant is required to use in the preparation of her trial. Appellant has not made any effort to show in any manner that such 'newly-discovered evidence' would produce a different result if a new trial were granted. The mere statement that 'reasonable diligence' has been used does not suffice. Linton-Summit Coal Co. v. Hutchison, 1953, 232 Ind. 369, 111 N.E.2d 819.

One who seeks a new trial on the grounds of newly-discovered evidence must first show the use of due diligence by setting out the facts constituting the same so that the trial court, in passing thereon, may determine from all the facts presented whether due diligence was reasonably used....