Herman v. Mason
Wisconsin Supreme Court
APPEAL from tbe Circuit Court for Maniiovjoc County. Tbe action was commenced in a justice’s court, and tbe plaintiff recovered. Tbe defendant appealed to tbe circuit court, where the cause was tried, and the plaintiff again recovered. Judgment against tbe defendant was entered at tbe December term, 1873. At the next term of tbe circuit court (June term, 1874), a motion was made on behalf of the defendant that tbe judgment be set aside, and for a new trial.
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APPEAL from tbe Circuit Court for Maniiovjoc County. Tbe action was commenced in a justice’s court, and tbe plaintiff recovered. Tbe defendant appealed to tbe circuit court, where the cause was tried, and the plaintiff again recovered. Judgment against tbe defendant was entered at tbe December term, 1873. At the next term of tbe circuit court (June term, 1874), a motion was made on behalf of the defendant that tbe judgment be set aside, and for a new trial. Tbe court granted tbe motion ; and this appeal is from tbe order granting tbe same. It appears from tbe motion papers, that the material…
1Opinion of the CourtLyoN, J.
There are two insuperable objections to the order granting a new trial. 1. The defendant entirely fails to show that he used the slightest diligence before the trial to find evidence of the age of the plaintiff, although it appears that he had'known him and his father for years. He had only to call the father as a witness to prove the age of the plaintiff. No new trial should ever be granted for newly discovered evidence, unless the moving party shows that he used due diligence before the trial, to discover it, or to prove the same facts by other evidence. 2. The entry in the church register,…
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