Wolf v. Mahan

Citations

• 57 Tex. 171
• 1882 Tex. LEXIS 116

Syllabus

<p>1. Motion for new trial—Cumulative evidence.— In an action o£ trespass to try title, filed February, 1879, the plaintiff filed an affidavit June 21, 1880, of the forgery of a deed purporting to be her husband’s, of date September 8, 1844, acknowledged before A. P. Thompson, chief justice of Harris county, for the certificate under which the land sued for was located, and which deed formed part of the defendant’s chain of title. Upon the filing of the affidavit, the defendant propounded interrogatories to certain witnesses in Harris county, Texas, to prove the execution of the deed. The defendant, in her cross-interrogatories to those witnesses, indicated an effort to prove that her husband, prior to September, 1844, had removed to a distant state. Four of the witnesses, by depositions, proved the genuineness of the deed, with other facts corroborating it. On the trial, defendant introduced witnesses on the stand who testified that during September, 1844, P. Jenks Mahan, the pretended grantor, was in the city of Philadelphia and was in New Jersey. The jury found for plaintiff. The defendant urged a motion for new trial on account of newly-discovered testimony, which was in rebuttal of the plaintiff’s testimony as to Mahan’s whereabouts at the date of said deed. Held,</p> <p>(1) That defendant was not chargeable with knowledge of such newly-discovered testimony, and consequent want of diligence to obtain it, by the said cross-interrogatoriés, seemingly designed to show Mahan’s permanent removal from the state.</p> <p>(2) That such rebutting evidence was not cumulative to testimony introduced directly proving the execution of the deed.</p> <p>(3) That the motion for new trial was improperly refused.</p> <p>2. Cumulative evidence.— Evidence is not cumulative merely because former evidence may have indirectly tended to establish the same fact.</p> <p>8. Same—Practice in new trial.— The reason of the rule forbidding a new trial for the purpose of admitting cumulative t