Mullong v. Mullong

• Decision Date: 22 November 1916
• Docket Number: 30661
• Citation: 159 N.W. 994,178 Iowa 552
• Parties: HENRY MULLONG, Appellee, v. JOHN MULLONG, Appellant
• Court: Iowa Supreme Court

159 N.W. 994

178 Iowa 552

HENRY MULLONG, Appellee, v. JOHN MULLONG, Appellant

No. 30661

Supreme Court of Iowa, Des Moines

November 22, 1916

Appeal from Plymouth District Court.--WILLIAM HUTCHINSON, Judge.

ACTION upon two promissory notes. Defendant pleaded payment of one note, and admitted the execution and delivery of the other and, for the amount thereof, with interest and costs, offered to confess judgment. The case was tried to the court without a jury, resulting in a judgment for the amount of both notes. Thereafter, and within due season, defendant filed a motion for a new trial, based on newly discovered testimony. The trial court denied the motion, and defendant appeals.

Reversed.

T. M Zink, for appellant.

Kass Bros. & Sievers, for appellee.

DEEMER J. EVANS, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

DEEMER, J.

Defendant testified, on the trial, to the payment in cash of the first note; and this, the plaintiff squarely denied. Some other testimony was adduced, but this was addressed almost wholly to collateral matters. In his original testimony, defendant made no reference to any receipt's having been given him by plaintiff. Three days after judgment was rendered, defendant filed a motion for a new trial, based upon newly discovered testimony, this testimony being a receipt for the amount of the first note, purporting to be signed by plaintiff. This receipt does not bear any date. It was found, according to the showing made, by accident, in looking over some old papers; and the finding thereof is amply sustained by the record. There is also testimony to the effect that what purports to be plaintiff's signature thereto is genuine. The plaintiff, in a counter showing, denied that he signed the receipt, or that he directed or authorized anyone to sign it for him. The showing of diligence on the part of the defendant is as follows:

"I further state that, while uncertain about the matter, I thought I had a receipt for the money paid by me, as herein stated, but I could not find the same before the trial of said action, having searched for the same through my papers and where I usually kept my papers and receipts. I further state that the said receipt must have been inside of some other paper, as, when I emptied out all the papers in a valise in which the same was, it fell out upon the floor from other papers. I further state that I searched through the same papers for the receipt before the trial of said action and did not find the same, and decided that it had been lost. From the fact that I failed to find the receipt when I searched for it leads me to the conclusion that the same was inside of some other papers, and I failed to discover the same. I further state that if I could have found the said receipt I would have produced the same upon the trial of said action."

Plaintiff claims that the trial court was right in denying the motion for a new trial, because the signature to the receipt is not genuine; for the further reason that defendant was a witness upon the trial, and made no mention of any receipt; and, finally, because he did not exercise proper diligence in discovering the paper; and, in any event, the testimony is cumulative in character.

As to the first proposition,--the genuineness of the signature,--it is...