Williams v. Riches

Oassoday, J. Under the pleadings, the plaintiff was required to prove tbe execution of the note by John Eiches. Sec. 4192, R. S. The evidence of such signing by John Eiches was certainly very weak. The note purported to be signed by John Eiches’ making his mark. It was proved that neither he nor the payee, Thomas "Welch, was able to write his name. The daughter of Mr. Welch testified to the effect that April 10, 1879, and when she was about ten years of age, at her father’s house, and at the request of both her father and John Eiches, she then and there made the indorsement thereon of $25, as it appeared on the note; that June 1, 1882, at the house of her father, and at the request of both John Eiches and her father, she then and there made the indorsement thereon of $35, as it appeared on the note; but that she saw no money paid on either occasion. There was also testimony of another witness to the effect that he was present at an attempted settlement between Thomas Welch and John Eiches, in 1882; that he acted in behalf of Welch in the matter of such settlement; that a note held by Welch against Eiches was brought up, and the note presented by Welch at that time; that he believed the note in question was the same note thus presented. We must hold that such evidence was sufficient to support the verdict, and hence that the trial court properly refused to grant the nonsuit, and also properly refused to set aside the verdict for want of evidence. We do not think there was any error in refusing to compel the witness Miss Welch to rewrite the indorsement on the note in the presence of the jury, as the defendant’s counsel should read it to her, for the purpose of being used in evidence,— especially as the indorsements were long before, and she had testified to the effect that her handwriting had very much changed and improved since she 'made the indorsements on the note. 1 [572] There is no reversible error for rejecting, as evidence on the part of the defendant, an affidavit made by the plaintiff for the purpose of continuing this cause in the trial court for the reason that he could not safely proceed to such trial without the testimony of one William Houston, whom he believed to have been present and to have made the last indorsement on the note by direction of John Riches. The defense was allowed to prove, and did prove, by William Houston’s father, that some sis months prior to the trial the plaintiff told him, in effect, that his son William made one of the indorsements on the note,— the first indorsement. The plaintiff thereupon testified to the effect that he did make such statement; that he was induced to do so from comparing William Houston’s handwriting with such indorsements; that he at that time knew nothing about the fact, but was simply trying to find out who made the in-dorsements; that, subsequently, he was informed that it was the daughter of Mr. Welch. The learned counsel for the defendant insists that a new trial should have been granted upon the ground of newly discovered evidence. The affidavits in support of such motion are voluminous, and the same is true in respect to those used in opposition to such motion. We have carefully read all these affidavits, and we are not prepared to say that such newly discovered evidence is of such a character as would probably produce a different result; and hence the court was justified in refusing to grant the motion. Grace v. Mc Arthur, 76 Wis. 641. The question was largely in the discretion of the trial court, and we would not feel justified in holding that there had been any abuse of such discretion. We find no reversible error in the record. By the Court.— The judgment of the circuit court is affirmed.