KIRKPATRICK V. WOLFE. VOL. 17 g KIRKPATRICK poe V. WOLFE & BISHOP. Where a party moves for a new trial, he waives alt prior exceptions not incorporated in his motion for a new trial. Hewitt v. Hancock & Ewing, 15 Ark, 511, and previous adjudications. A written endorsement on a note, signed by the payee, and directing payment thereof to be made to a third person, is not sufficient evidence of au assignment of the note, without proof of delivery. A party will not be entitled to a new trial on account of newly discovered evidence, where it is merely cumulative ; nor unless he shows that he has used due diligence to procure it at the former trial. Writ of Error to the Circuit Court of Ashley County. ON. THEODORIC F.SORRELLS, H Circuit Judge. Fowler, for the plaintiff. Pike & Cummins, for defendant. * HANLEY, J. This was an ac- F97
JAN. TERM, 1856. KIRKPATRICK V. WOLFE. tion of debt, commenced in the Ashley knowledge of any one else having any-. circuit court on the 4th October, 1853, thing to do with it:" and also, the testi-founded on a promissory note, made mony of John B. Savage, who swore,. by the plaintiff in error and others, not "That he was former clerk of said proceeded against for want of service, court; that on the 4th October, 1853, he payable to the defendants as co-part-filed the original declaration in this. ners, dated Ilth August, 1847, and pay-cause, as its endorsement shows (which able at nine Months from date. he produced and read as stated); that Several pleas were interposed by the by leave of the court the defendants in plaintiff; Kirkpatrick, to-wit: 1st. Nil error had leave to withdraw their dec-debet. 2c1. That on the 11th August, laration, filed on the 4th October, 1853,. 1847, Wolfe & Bishop endorsed, as-and to file a new one in its stead, signed, transferred and delivered said which they did on the 2.5th March,. note, for value received, to Wilson & 1854, which is the one now in court. Duprey, and averring that they were (The witness read the orders from the the owners thereof. 3d. Payment of record, whieh sustained his statement.). principal and interest to Wolfe & This was all the evidence adduced by Bishop, on the llth May, 1848. 4th. the parties, at the trial below. Court Statute limitations of five years. gave final judgment for the defendants The defendants in error joined issue in error, on the verdict as above stated. to the first plea; demurred to the sec-Plaintiff moved the court in writing ond, for technical objection, which was for a new trial, setting out therein the. sustained, and an amended one filed, following causes: 1st. That the ver-of same import, which was replied to, dict wag against the law and evidence. and issue made up thereon. Replica-2d. Because of newly discovered evi-t ion denying payment and issue dence since the trial: and with the mo-thereon, and replication and issue to tion, the affidavit of plaintiff in error the 4th plea. was filed, stating, in substance, "That It appears from the transcript, that since the trial he had learned be could neither party required a jury, and the prove by one Wiggins, that Wilson & several issues, as above, were submit-Duprey, to whom the note sued on ted to the co:Art by consent. Verdict purports to be assigned, placed the and finding for the defendants in er-same in the hands of the witness, ror, for the amount of the note sued on, Cook, to be sued on: that he did not and interest, on the following testi-know of the existence of this evidence mony, to-wit: The note sued on, and at the time of the trial had in this an endorsement thereon in these words: cause." Which motion was overruled, "Pay to the order of Wilson & Du-and plaintiff in error excepted, setting prey," signed "Wolfe & Bishop," out in his bill all of the above facts. which manifested no marks of obliter-He now brings error, assigning sev-ation, and which was read without ob-eral causes, wherefore, said judgment. jection by the plaintiff in error; and should be reversed, which we will pro-the following oral testimony, to-wit: ceed to consider. Samuel J. C'ook, a witness for the de-It is insisted by the defendants in er-fendant in error, testified: "That he ror, that the plaintiff, in consequence received said note from Wolfe & of his having moved for a new trial in Bishop, by letter, for collection, and the court below, waived all prior ex-981 *wrote back to them for their ceptions, and must stand on the in-christian names, and they sent them, trinsic justice of his ease. This is un-and that he brought suit, and had no doubtedly correct, with this qualifica-
\Tor,. 17 tion: Provided, the party does not in-in error. The court was warranted in corporate in his motion for a new trial, finding upon this issue for the defend-the antecedent decisions of the court of ants in error. The truth is, we are at a which he complains as grounds for a loss to conceive how it could have new trial. See Nevill v. Hancock, found otherwise from the law and evi-99*] 15 Ark. 511, and the former ad-dence. judicationsof this court to the like ef-As to the other issues, there is no Met.' question made by the plaintiff in error It does not appear from the tran-in regard to the propriety of the find-script in this cause, that any exceptions ing of the court upon them. The evi-were taken to the ruling of the court, dence is conclusive for the defendants by the plaintiff in error, at any stage of in error upon these issues. We find the proceeding, until his motion for a no error, therefore, in the verdict of new trial was overruled. It follows as the court in respect to them. a consequence, that no complaint can The only remaining point to P100 be heard or considered in this court, be determined, is, the one made in re-except upon what may appear from spect to the newly discovered evidence ; the exceptions taken, on the overrul-and as to this, too, we hold chat the ing the motion for a new trial, and on court below ruled properly: because the the grounds therein set forth. See plaintiff in error does not show any .Dickinson et al. V. Burr, 15 Ark. 374. diligence whatever on his part, where-It is maintained, that the finding of by to obtain the newly discovered evi-the court, was not authorized by the dence, and for the additional reason, facts and, the law. that it was cumulative of the evidence There was no evidence whatever in-produced at the trial, and as to these, troduced by the plaintiff in error to see the case of Burriss v. Hurd & Wise, support the issue upon his second plea. 2 Ark. Rep. 33 ; notes 2 and 3. It was incumbent upon him, from the Finding no error, therefore, in the pleading in the cause, to prove an as-record and judgment of the circuit signment of the note sued on to Wil-court of Ashley county, they are in all son & Duprey ; this he did not do. His things affirmed. Let the judgment be only evidence upon this point was the affirmed. evidence of the endorsement upon the note, which did not prove the issue on his part: He should have gone farther, and proved that the assignment to Wilson & Duprey was rendered complete and perfect by proof ; that after endorsement in writing, the note sued on was delivered to them. This was essential as held in the case of May v. Cassidy, 27 Ark. 376; Feimster v. Smith, 10 Ark. 496; Mitchell v. tonly, 13 Ark. 416. So far from a delivery to Wilson & Duprey being proved, the reverse was conclusively shown by the testimony of the witness Cook. He testifies that he received the note in 'question directly from the defendants 1. See Danley v. Robbins, 3-146, note 1.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.