| Wis. | Jun 15, 1870
Lead Opinion
We are inclined to think that a new trial should have been granted in this case, on the ground of newly discovered evidence. The plaintiff, in her testimony, when asked how she obtained the money which she said she loaned the defendant, stated that friends in Chicago collected about $660 in contributions for her, when her husband fell into the lake at that city, and was drowned. The affidavits of Leon-hard Hesse, Wilhelmina Hesse and Richard Lotholz, were used in support of the motion for a new trial. These persons state in their affidavits that they were living in Chicago at the time the plaintiff’s husband was drowned; knew them well, and were acquainted with their pecuniary condition. L. Hesse says that he went at plaintiff’s request, and in her company, to obtain contributions from the residents of Chicago, and that between fifty and sixty dollars, in all, were collected by them, which amount was divided between them; and that he positively knows that nobody besides himself raised any money or means for her; and that she was entirely destitute of means except the one-half of the money thus collected. W. Hesse states in her affidavit that her husband went with the plaintiff to make collections from the citizens of Chicago, and that they succeeded in obtaining, by contributions, in all a sum not exceeding fifty dollars. Lotholz states that he advised the plaintiff, after the burial of her husband, to get a subscription to aid her by contributions for immediate necessities; that thereupon a subscription was drawn; that he and his partner contributed two dollars; knows that the subscription was circulated by plaintiff and Hesse, and that about fifty dollars were raised thereon; and that she received no contribution from any other source.
This evidence was not discovered until after verdict. It seems to us' that it is not merely cumulative to the evidence introduced on the trial, as the plaintiff’s counsel contends; nor is it purely impeaching the tes
The judgment of the circuit court is reversed, and a new trial awarded.
Rehearing
The respondent moved for a rehearing, but no argument in support of the motion was filed within the time allowed by the rule. The appellant then moved to dismiss the motion for a rehearing.
The rule in regard to rehearing provides that if the arguments in support of the motion are not served and submitted to the court within twenty days after filing the motion, the motion shall be deemed waived. 21 Wis., Appendix B. In this case, the motion for a rehearing, by this rule, failed for want of prosecution. The motion, therefore, to dismiss the motion for a rehearing, was unnecessary. It is for this reason that the present motion is denied.
By the Court. — Motion to dismiss denied.