89 Iowa 302 | Iowa | 1893
This is an action by the administratrix of L. K. Dutton, deceased, for recovery of compensation for keeping, boarding and maintaining the child of Thomas Seevers. In 1876, Seevers married the daughter of L. K. Dutton, and the child in question was born to them July 8, 1877. When the child was six months old, the mother left her husband, and she and her father took the' child to the father’s home, where it was cared for and maintained by him until Dutton’s death, in January, 1890. In 1881 Seevers and his wife were divorced, and in said action it was decreed that the mother of the child “shall have the custody, care and control of said child, and shall stand charged with the support thereof, and that the plaintiff [in that action, and defendant in this] shall pay the sum of three hundred dollars, which sum shall be in full of all alimony and support to defendant [in that action], and in full of support of said child. ” It appeared that defendant had fully complied with the terms and conditions of the decree. There was a trial to a jury, and a verdict for the defendant.
The plaintiff filed a motion for a new trial within three days after the return of the verdict, upon several grounds, among which is the following: “Third.
More than three days thereafter an amendment to said motion was filed, stating the following, among other, grounds for a new trial:
‘ ‘ Twelfth. The court erred in not instructing the jury on which party was the burden of proof to show whether L. K. Dutton expected to be paid for the support of said Eugene N. Seevers, or whether he expected to do so without compensation. Thirteenth. The court erred in not instructing the jury that the burden of proof was on the defendant to show that said L. K. Dutton supported said' Seevers without compensation, and that he did not expect any compensation therefor. Fourteenth. The court erred in not instructing the jury that the burden of proof was on defendant to overcome the presumption of law that defendant was liable for the support of said Eugene N. Seevers. Fifteenth. The court erred in not instructing the jury that the presumption of law- created a liability on the part of the defendantto support said Eugene N. Seevers, and that the burden of proof was on said defendant to overcome such presumption of liability.”
When leave was asked to file this amendment to the motion, the defendant objected thereto, on the ground that the same was not made or filed within three days after the rendition of the verdict. The objection was overruled, to which the defendant excepted. On hearing on the motion, as amended, the same was sustained upon the following ground only, viz.: “Motion for a new trial sustained on the ground that the court had failed to instruct as to burden of proof as to expectation of L. K. Dutton.” The defendant excepted to the ruling, and plaintiff excepted to the ruling in failing to sustain the motion and amendment on each of the other. grounds therein. Both parties appeal.
On appeal of the plaintiff the judgment below is affirmed. On appeal of the defendant the judgment below is reversed.