Action by appellees against appellants to contest the last will and testament of Mary M. Hansing. To the complaint there were answers in general denial.
There was a trial by jury, which resulted in a verdict in favor of appellees, on which judgment was rendered, from which, after appellants' motion for a new trial was overruled, this appeal, appellants assigning as error the court's action in overruling their motion for a new trial.
Appellants undertake to present error of the court in failing, before the trial, to appoint a guardian ad litem for Elizabeth Vielhaver, a minor defendant, then twenty years of age and 1. since this appeal of the full age of twenty-one, as a cause for a new trial, and the question is presented in no other way. Assigning such a reason in a motion for a new trial presents no question. Evans v. State, ex rel. (1877),
Even if the question were before us for our consideration, the court did not err in appointing a guardian ad litem for said appellant after the trial had commenced and when it was 2. discovered that she was a minor. See Earl v. Cotton
(1908), 78 Kan. 405, 96 P. 348; Galbraith v.Pennington (1914), 184 Mo. App. 618, 623, 170 S.W. 668;Seiden v. Reimer (1920),
There was no error in overruling appellants' motion for a new trial on the ground of newly-discovered evidence. Such evidence, as it is set out in appellants' motion, is simply 3. cumulative, and it has been many times held that a new trial will not be granted for such cause where, as here, the evidence is merely cumulative. *Page 634 Simpson v. Wilson (1855),
It does not appear that such evidence would probably bring about a different result. Smith v. State (1896), 143 4. Ind. 685, 42 N.E. 913; Westbrook v. Aultman, supra.
Further, there was no sufficient diligence shown in 5. discovering the evidence. The evidence is ample to sustain the verdict.
Affirmed.