Ward v. Voris

• Decision Date: 19 February 1889
• Docket Number: 14,145
• Citation: 20 N.E. 261,117 Ind. 368
• Parties: Ward v. Voris
• Court: Indiana Supreme Court

20 N.E. 261

117 Ind. 368

Ward v. Voris

No. 14,145

Supreme Court of Indiana

February 19, 1889

From the Montgomery Circuit Court.

Judgment affirmed, with costs.

P. S Kennedy, S. C. Kennedy, T. H. Ristine and H. H. Ristine, for appellant.

J. E Humphries, M. D. White and W. E. Humphries, for appellee.

OPINION

Olds J.

This was a suit on a promissory note.The defendant filed pleas in payment, one alleging payment in money, and one alleging payment in certain articles of personal property.Finding and judgment for the plaintiff, the appellee.Motion for a new trial filed and overruled by the court, and exceptions reserved by the appellant.

The question presented and discussed is, whether the appellant was entitled to a new trial on account of newly discovered evidence.

The main controversy in the case was between the payor of the note, the appellant, Ward, and the payee of the note, one Wilkins, who had sold and assigned the note to the appellee, as to certain credits.

Some question is made by counsel for appellee in regard to the evidence taken by the short-hand reporter being any part of the record in this case.The evidence so taken by the reporter is transcribed in long-hand and incorporated bodily into the bill of exceptions, filed in the clerk's office and incorporated into the record, as required by section 1410, R. S. 1881.

The motion for a new trial, on the ground of newly discovered evidence, was filed at the same term of the court at which the case was tried, and is supported by the affidavits of the appellant, Ira Stout and Mrs. Ann Kirkpatrick.

Appellant, in his affidavit, says that "since the trial he has obtained newly discovered evidence material to his defence, which he could not, with reasonable diligence, have discovered and produced at the trial; that, upon the trial of said cause, the only question was as to the amount of property which this defendant had furnished to Clinton Wilkins, the assignor of the note sued upon, and to his son, Thomas Wilkins; that a large number of items testified to by defendant were denied by said Clinton Wilkins, and were excluded in the computation, as not being proved, and by reason of the loss of certain books, as testified to by defendant, other matters were not stated; but defendant says that upon a trial for divorce between said Clinton Wilkins and his wife, at the May term, 1884, of said court, the amount due upon this note was being ascertained in order to fix the amount of alimony, and the only sum which said Wilkins named as due upon said note was one hundred dollars; that affiant is informed that he was asked to give his best impression as to the sum due upon said note, and he said it might be one hundred dollars, and it might be more or less, and he files herewith the affidavits of one Ira Stout and Ann Kirkpatrick, who heard said fact testified to upon said trial; that affiant was not present at said trial, and did not know that said matter was inquired of in said cause, and that he had no reason to suppose that said affiants knew said facts until since the trial of the case at the September term of this court, 1887."

Ira Stout, in his affidavit, says that he was present at the trial of the divorce case, and that the note Wilkins held against appellant, being the note sued upon in this case, was inquired about, and Wilkins testified that he had had dealings with appellant for years since the execution of the note, and had received from said appellant stock, tile, lumber and other property, and that his son, Thomas, had received horses and stock and other property, all of which articles were to go as credits upon said note, and that he could not tell just what was due; it might be one hundred dollars and it might be more.

Ann Kirkpatrick, in her affidavit, states that she heard Wilkins testify on the divorce trial, and that he said he and his son had received property as stated by Stout, which was to be applied as credits on the note, and that he said he could not...