| Ind. | Jun 28, 1859
The appellant filed, in the Common Pleas Court, his claim against the estate of Joseph G. Marshall, deceased, consisting of a note purporting to have been executed by the decedent to the appellant for the sum of 365 dollars, dated at Madison, May 15,1847, and payable one year from date. On the note were indorsed credits of payment, as follows, viz:
■“ January 5,1853. By cash on within note, Cr... $20 00
June 10,1848. Note on Dr. IJodge............. 19 89
June 10, 1848. Note on J. C. Patton............. 12 50
June 10, 1848. Note on S. C. Hoyt............ 60 00
May 9,1850. Note on Joyce.,.................. 8 44
May 9, 1850. Note on J. C. Patton............. 29 13
May 9, 1850. Note on Jas. C. Leavitt........... 13 69
Ja/nuary 15,1853. Cash and fee................ 23 00
$166 65”
The claim was properly sworn to by the appellant.
The administrators of Marshall appeared and filed an answer denying the execution of the note by the decedent, which was verified. Replication that the decedent did execute the note.
The issue thus formed was tried by a jury, who returned a verdict for the defendants. A motion for a new trial,
The reasons filed for a new trial were, that the verdict was contrary to law and evidence; alleged error in instructions to the jury; and newly discovered testimony.
It appears, by a bill of exceptions, that on the trial, the plaintiff offered and gave in evidence the note in question, and proved by sundry witnesses, who were acquainted with the handwriting of the decedent, that the signature to the note in question was, in their opinion, in the handwriting of the decedent. The defendants thereupon called sundry witnesses acquainted with the handwriting of the decedent, who deposed that, in their opinion, the signature to the note in question was not in the handwriting of the decedent. This was all the evidence given in the cause.
The plaintiff asked that certain papers, containing the signature of the decedent, go to the jury, for the purpose of instituting a comparison .of handwriting; but the Court ruled against him. The point, we think, is not legitimately before us, as this was not made a ground of the motion for a new trial; hence we shall not discuss the correctness of the ruling.
In support of the motion for a new trial, on the ground of newly discovered evidence, the plaintiff filed an affidavit, setting forth that on the morning after the trial, he was, for the first time, informed that a certain Eliza Beth-rick knew something about the claim that he had upon the estate of Joseph G. Marshall, deceased, and upon a note that was before the Court for investigation on yesterday; that he was this morning informed that Mrs. Bethrick knew something of the matter in issue that was material, and forthwith procured her affidavit; that he can have the evidence of Mrs. Bethrick if he can have a new trial; that she lives in the city of Madison, and he can have her evidence, and if he had known, or had the means of knowing it, he would have had her testimony when the cause was tried; that his claim is just, and that said Marshall made said note is absolutely true, and were he alive no objection
The affidavit of Mrs. Betliriclc sets forth that in the month of January, 1853, she was in the store of the plaintiff in Madison, and Joseph G. Mczrshall, since deceased, came in, and a talk commenced about a certain note that Humphries held against Marshall, and Marshall made a payment upon the note in her presence; that she heard the amount named that he paid, but is not certain what the amount was, but it was between 20 dollars and 40 dollars, or thereabouts; that she saw it counted and laid in two piles, the small bills were put together in one pile, and the larger bills in another; that the money Avas all bank bills; that she saw the note, and heard Humphries read to Marshall payments made upon the note, as marked upon it; that some of the payments were made by other persons than Marshall; that one of the payments was made by Hodges, one by Patton, one by Joyce, and another by Hoyt. She well recollects that Marshall said he would pay the balance of the note between that time and the spring; that she was waiting there to buy some goods, and had to wait until they got through. She does not recollect that she heard the amount of the note exactly, but from all she heard she thinks it was a considerable amount.
The facts SAVorn to by Mrs. Bethrick, seem to identify the note in controversy; and, in the state of the evidence presented by the record, we think her testimony would most likely have changed the result. See Bronson v. Hickman, 10 Ind. R. 3. We are of opinion that the lateness of the discovery of the erddence, Avas not owing to a want of diligence on the part of the plaintiff. It is urged on behalf of the appellees, that it does not appear that the plaintiff had made any search or inquiry for this or similar evidence; and, also, that he must have known of the existence of this 'evidence, as the facts sworn to by the proposed witness, transpired, if at ail, in the presence of the plaintiff. We think it not reasonable to suppose that the plaintiff would be likely to remember Avhether any one, or who, if any one, was in his store at the time of the transaction
It is insisted that the evidence is but cumulative, and therefore, that the motion was properly overruled.
The only evidence given was the opinion of the witnesses as to the handwriting of the deceased. That proposed by the newly discovered witness involves no opinion whatever, but shows an admission by the deceased, by his action and conduct, of the making of the note. The evidence all tends to the same point, viz., the making of the note by the deceased, but it is totally different in kind. In 1 Greenl. Ev.,
§ 2, it is laid down that “ Cumulative evidence is of the same kind, to the same point. Thus, if a fact is attempted to be proved by the verbal admission of a party, evidence of another verbal admission of the same fact is cumulative; bút evidence of other circumstances tending to establish the fact, is not.”
This exposition we deem correct, and tested by this rule, the evidence was not cumulative merely; and, therefore, the case does not come within the rule established by numerous cases in this Court, that a new trial will not be granted on the ground of newly discovered evidence which is merely cumulative to that given- on the trial.
Another objection, somewhat technical in its character, is made, which is, that the reason for a hew trial on this ground, as assigned in writing, is wholly insufficient, being merely “newly discovered evidence.”
It is insisted that the written reason, in order to be valid, should set out fully that the application was made on the ground of “ newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced on the trial,” in the language of the statute providing for a new trial in such cases.
We are of opinion, however, that such strictness is not in harmony with the general spirit of the code, and that in-
The judgment is reversed with, costs.' Cause remanded for a new trial.