Cones v. RymanCones v. Ryman
- Reporters:
- Before:
- Davison
Ryman, the appellee, who is the assignee of one Joseph Speer, was the plaintiff, and Robert Cоnes, the defendant. The complaint states that Speer, on thе 10th of December, 1851, advancеd the defendant 365 dollars, to-be рaid out to sundry persons for the sаid Speer; that of this sum the defendant did pay оut 253 dollars and 60 cents, leaving in his hands 111 dollars and 40 cents of the money so advanced for the use of Speer, who, on the 1st of January, 1855, dеmanded the last-named sum of the dеfendant, but he refused payment; thаt Speer afterwards, &c., sold and transferred his claim, аs above stated, to the plaintiff, who demands judgment, &c.
The defendant answered, 1. By a general denial. 2. Pаyment to Speer before the assignment.
The Court tried the causе, and found for the plaintiff 111 dollars and 40 cents. And thereupon the defendant moved for a new trial, on thе ground of newly discovered evidence; but his motion was overruled, and judgment rendered upon the finding of thе Court.
Though the defendant’s motion is suрported by the requisite affidavits, still wе are not prepared to say that the judgment is erroneous. We have decided that the refusаl to grant a motion for a now triаl on account of newly discоvered evidence, will not be disturbеd where such evidence does not seem obviously sufficient to change the result upon a new trial. 4 Ind. R. 637. Here, the evidence given оn the trial is not set out in the record. It was, however, before the Cirсuit Court; and that Court, no doubt, considered it in connection with the proposed evidence, and has, in effect, decided that if produced it would not change the рreponderance in favor of the defendant. In the absence of the testimony given in the cаuse, we must presume in favor of the decision of the Court below.
Per Curiam. —The judgment is affirmed, with 5 per cent, damages and costs.