Bigelow v. Sickles

75 Wis. 427 | Wis. | 1890

Cassoday, J.

The plaintiff was formerly the wife of the proposed witness, John Z. Sickles. They were divorced prior to the trial in question. Notwithstanding such former relation, there seems to be no doubt but what John Z. is a competent witness against the plaintiff, as to such facts as came to his knowledge during such marriage by means equally accessible to other persons, and not disclosed to him in conversations with her. 1 Greenl. Ev. § 254; 1 Whart. Ev. § 429; Crook v. Henry, 25 Wis. 569; Coffin v. Jones, 13 Pick. 441. The mere fact that the complaint and warrant upon which the plaintiff was arrested charged the adultery as having been committed in the town of Deerfield, and the newly discovered evidence tends to prove such offense, about the same time, in the village of Cambridge, both being in Dane county, does not render it incompetent. It is claimed that such newly discovered evidence is merely cumulative. It was held by this court, several years ago, that “testimony is not merely cumulative when it tends to prove a distinct fact, not testified to at the trial, although other evidence may have been introduced by the moving party tending to support the same ground or claim or defense to which such fact is pertinent.” Wilson v. Plank, 41 Wis. 94. That rule has frequently since been sanctioned, and even at the present term. Goldsworthy v. Linden, ante, p. 24, and cases there cited. In that case the judgment was reversed because the trial coui’t refused to grant a new trial upon newly discovered evidence as to admissions of the plaintiff. It would certainly be a much greater stretch of appellate authority to reverse the order in the present case. Within the rule suggested we must hold that the new evidence proposed to be given by John Z. Sickles is not merely accumulative.

The only doubt we have entertained in this case is as to whether the moving papers disclose sufficient diligence to discover the new evidence before the trial, or to prove the same facts by other evidence. But it is to be remembered that, although the motion for a new trial was granted upon the sole ground of newly discovered evidence, yet that such motion, even upon that ground, was based in part upon the judge’s minutes and the proceedings in the action, and was therefore very much in the discretion of the trial court. Smith v. Champagne, 72 Wis. 480; Smith v. Grover, 74 Wis. 174. We find nothing in the record to indicate any abuse of such discretion.

By the Court.— That portion of the order appealed from is affirmed.