Herman v. Mason

LyoN, 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, although it may be competent evidence to prove the date of his baptism, is not evidence of the date of the plaintiff’s birth. So far as the latter date is concerned, it is only hearsay. Prof. Greenleaf says: “ Neither is the mention of the child’s age in the register of christenings, proof of the day of his birth, to support a plea of infancy.” 1 Greenl. Ev., § 493. The only power which the court had to set aside the judgment at a term subsequent to the term at which it was rendered, is given by sec. 38, ch. 125, E. S.; and the defendant has entirely failed to show a case within the provisions of that section. Loomis v. Rice, ante, p. 262, and cases cited. [275] By the Court. — The order of the circuit court setting aside the judgment and granting a new trial is reversed.