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O., N. & B. H. R. R. Co. v. O'Donnell.

amination that he looked back once at the point where the wagon road branched off from Second street to see if a train was coming, and that he did not see any; that in his cross-examination at the same trial he testified that he looked back again when about half way between where he looked back the first time and the crossing of the accident, and that he could see the track and did not see the train approaching.

"Plaintiff says that within the last few days it has learned the names of several witnesses, one by the name of Brooks, and the others whose names and residences are yet unknown, but whose testimony plaintiff will be able to procure as it verily believes within a short time, by whom the plaintiff says it will be in a condition to prove that the said O'Donnell did not look back for the approaching train at the point stated by him in his testimony.

"That the said witnesses will swear that a party of them were in a wagon driving towards St. Edwards from the north; that they passed O'Donnell as he was riding in his wagon going north, that evening, and that the said O'Donnell was bent over in a reclining posture in his wagon, apparently fast asleep; that they called to him and that he failed to hear or recognize them.

"That the said Brooks will swear he also met the said O'Donnell as he was riding in his wagon, within a few hundred yards of the crossing where the accident occurred, on the evening that it occurred, and that he was still lying in a reclining posture in his wagon, with his head bent down, apparently fast asleep.

"Plaintiff says that it could not by the exercise of reasonable diligence have discovered this testimony prior to this time; that it has only been since the trial of the cause, when the witnesses for the said O'Donnell deemed that the judgment could not be set aside, that they have concluded to make these admissions of material facts.

"Plaintiff submits that if the said O'Donnell in riding

O., N. & B. H. R. R. Co. v. O'Donnell.

out of town that evening was asleep in his wagon at the point designated by the testimony of the witnesses aforesaid, then he did not look back for the train or use ordinary caution, as he was bound to do to preserve himself from danger, and as he testified that he did."

On the trial of the petition the plaintiff in error introduced certain portions of the testimony of the defendant in error, and of Mabel Smith and Abraham Smith, which was given on the former trial, and also that of a Mr. Austin. The principal object of most of this testimony was to prove that Abraham Smith, after having given his testimony, had explained the matter to some of the witnesses in such a way as to vary somewhat from his testimony given on the witness stand. Smith himself was not called as a witness, nor are the material facts in his testimony denied. The testimony introduced, if given its full force and effect, simply shows that the accident may have occurred somewhat differently from that proved on the former trial. There seems to be no denial of the negligence of the plaintiff in error, nor is there evidence to justify the court in setting the judgment aside.

When a petition or motion for a new trial is grounded upon the discovery of new or material evidence, our practice requires that the newly discovered evidence should be disclosed. This is required that the court may be enabled to form an opinion whether, by the introduction of such evidence, a different verdict ought to be obtained. In considering the motion, the court will not inquire whether, taking the newly discovered evidence in connection with that exhibited on the trial, a jury might be induced to give a different verdict, but whether the legitimate effect of such evidence would be to require a different verdict. In the trials of issues of fact, the court passes upon the competency of evidence, and the jury on the credibility and effect of testimony. But after verdict, when the motion for a new trial is considered, the court must judge not only of the

O., N. & B. H. R. R. Co. v. O'Donnell.

competency but of the effect of evidence. If, with the newly discovered evidence before them, a jury ought to have come to the same conclusion they have done, it would be worse than useless to grant a new trial. The effect would be to add to the expense of the litigation, and delay parties in obtaining their rights. Lessee v. Park, 4 Ohio, 44-45. Simpkins v. Wilson, 11 Ind., 541. It is not enough that a party has discovered evidence which would strengthen his case, if such evidence is not sufficient to justify a jury in finding a different verdict. Fleet v. Hollenkemp, 13 B. Mon., 219.

Where a new trial is sought upon a petition filed after the term in which the judgment was rendered, the cause assigned being newly discovered evidence, the evidence on the former trial should be presented to the court, so as to enable the court to determine whether or not the new evidence would probably change the result, or whether the testimony is merely cumulative. Ruddick v. Ruddick, 21 . Ind., 163. Cowden v. Wade, 23 Id., 471. House v. Wright, 22 Id., 383. Thompson v. Callison, 27 Tex., 438. Huntington v. Drake, 24 Ind., 347. Freeman v. Bowman, 25 Id., 236. Kirby v. Childs, 10 Kas., 639.

The petition fails to state facts sufficient to justify the interposition of the court. It is not sufficient for a plaintiff to allege, "That it has learned, and plaintiff verily believes that it is in a condition to prove," certain things, but there must be a direct allegation as to the existence of certain facts which the plaintiff is then prepared to establish. While the verification of the petition need only be made upon belief that the facts stated therein are true, yet the allegations in the petition must be direct and positive and not by way of inference. The petition is faulty in this regard, and fails to state a case entitling the plaintiff to any relief. The judgment is therefore affirmed.

JUDGMENT AFFIRMED.

THE other judges concur.

Reed v. Morton.

LOTTIE G. REED, APPELLANT, V. ROBERT B. MORTON ET AL., APPELLEES.

1. Husband and Wife: DEED of wife. Where a wife executes a deed of her real estate, leaving the name of the grantee, the amount of consideration, and the date blank, and delivers such deed to her husband for the purpose of enabling him to sell and convey said real estate, such deed duly filled up in the hands of a bona fide grantee, who purchased the land from the husband and paid the consideration therefor, will be sustained.

2.

:

Where a wife executes a deed in blank as to the name of the grantee, and in other respects, and delivers such deed to her husband to sell and convey her real estate therein described, and the husband thereafter sells said real estate and fills the blanks in said deed and delivers said deed to the grantee, and the wife knowingly uses a part or all of the consideration received therefor in her business, she will thereby ratify the sale and conveyance.

APPEAL from the district court of Saunders county. Heard below before POST, J.

S. H. Sornborger, for appellant, cited: 1 Devlin Deeds, Sec. 111, notes 4 and 5, and cases cited. Simms v. Hervey, 19 Iowa, 273.

N. H. Bell and G. W. Sampson, for appellees, cited: White v. Graves, 107 Mass., 325. Garland v. Wells, 15 Ballou, 47 Iowa, 188. McLain v. Bigelow Estoppel, 513.

Neb., 299. Swartz v.
McLain, 52 Iowa, 272.

MAXWELL, J.

This is an action brought by the plaintiff to quiet the title of certain real estate in Saunders county, of which she claims to be the owner.

The defendant in his answer alleges, "That on or about the 20th day of August, 1881, he purchased from the

Reed v. Morton.

plaintiff, Lottie G. Reed, and E. O. Reed, her husband, the lands mentioned and described in the plaintiff's petition, for the sum of nine hundred dollars in cash, which said sum defendant duly paid therefor. That at the time of said purchase as aforesaid, and the payment of the said nine hundred dollars, plaintiff and E. O. Reed delivered to this defendant their deed of general warranty to said lands, duly signed and acknowledged, and defendant took possession of said lands. That at the time of the purchase of said lands by this defendant the same was raw, uncultivated prairie land, without improvements of any kind, and were not worth to exceed the sum of nine hundred dollars, which was a reasonable and fair price therefor. That prior to the time of the purchase of said lands above described, and during negotiations for the purchase of said lands by this defendant, the said E. O. Reed, as agent for plaintiff, was conducting negotiations, and exhibited to the defendant a deed of conveyance, duly signed and acknowledged, containing the usual covenants of warranty, and complete in all respects, except the name of grantee, the date of signing, and the amount of consideration, and that at said time and for a long time prior thereto the said E. O. Reed, as agent for Lottie G. Reed, transacted all her business, and negotiated the purchase of said lands, apparently having full and complete authority in the premises; and that at the time of the purchase of said land and the payment of the consideration of nine hundred dollars therefor, the deed delivered to this defendant was signed by the grantors, Lottie G. Reed and Elias O. Reed, duly acknowledged by them, and was a perfect and regular deed in all respects.

"Defendant further says that, subsequent to the execution and delivery of the deed and the payment of the nine hundred dollars as herein before set forth, and about September, 1881, the plaintiff removed and became a resident of Wahoo, Saunders county, Nebraska, where she continued to reside and do business until about November, 1883.

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