Hesser v. Doran

Beck, J. — i promissofenceofownl ersiiip. I. The defense interposed to the foreclosure of the mortgage was payment made by the defendant to one Knoblock, who had possession of the note, and, T1Pon the payment to him, executed a satisfaction piece upon the record of the mortgage. The answer alleges that defendant paid the amount of the note to Knoblock in good faith, believing that he was the owner thereof, and had full authority to satisfy the mortgage. The evidence shows that Knoblock, at the time of payment, had the note and mortgage in his possession, but there is no other proof that he was the owner thereof, or had authority to collect the debt and discharge the mortgage. The evidence of plaintiff was to the effect that the instruments were left in Knoblock’s custody by the plaintiff for safe keeping, without any authority for the collection of the debt, and without transferring to him any interest in the securities. Upon this evidence the court rendered a decree for plaintiff. The defendant’s counsel insists that it lacks the support of the evidence. We are of a different opinion. The prima faoie evidence of Knoblock’s ownership of the note from his possession thereof is overcome by the direct and positive testimony of the plaintiff, that he had no interest in it, and was not authorized to collect it. It is true that he could have maintained an action upon the note, his possession being evidence of ownership. But the evidence of plaintiff as given in this action, would have overcome the case made by the possession of the instrument. The argument of counsel, based upon the right of Knoblock to maintain a suit on the strength of his possession of the paper, does not defeat plaintiff’s right to recover. [470] 2. new trial: ' ereíevidenee. II. A motion for a new trial was overruled by tbe Circuit Court. It was based upon alleged newly discovered evidence. Tbe motion, we think, was correctly overruled. It was not sufficiently supported by a showing of diligence in tbe preparation of the case for tbe discovery of tbe evidence sought to be introduced upon a new trial. Sully v. Kuhl, 30 Iowa, 275. Indeed, there is no showing,-or even averment, of any effort to procure for tbe trial tbe new evidence, and it cannot be pretended that tbe defendant was surprised by tbe introduction of plaintiff’s evidence. It was embodied in depositions which bad been on file more than •four years. Aeeirmed.