Opinion
No. 13,262.
Filed June 20, 1929. Rehearing denied September 11, 1929.
1. NEW TRIAL — Grounds for — Failure to Appoint Guardian Ad Litem — Presents no Question on Appeal. — That a guardian ad litem was not appointed for a minor defendant before the trial is not a ground for a new trial, and the assignment of such matter as a reason for a new trial presents no question on appeal. p. 633.
2. INFANTS — Guardian Ad Litem — Appointment after Trial Commenced — Not Error. — The court did not err in appointing a guardian ad litem for a minor defendant on discovering that she was a minor after the trial had commenced. p. 633.
3. NEW TRIAL — Newly-discovered Evidence — Cumulative — Not Ground for New Trial. — A new trial will not be granted on the ground of newly-discovered evidence where such evidence is merely cumulative. p. 633.
4. NEW TRIAL — Newly-discovered Evidence — Must Probably Produce Different Result. — A new trial will not be granted for newly-discovered evidence where it does not appear that such evidence would probably bring about a different result. p. 634.
5. NEW TRIAL — Newly-discovered Evidence — Diligence in Discovering it Must be Shown. — A new trial will not be granted for newly-discovered evidence where it is not shown that there was due diligence in discovering such evidence. p. 634.
From Marion Probate Court (2,040); Mahlon E. Bash, Judge.
Action by Frank L. Rumford and others against Elizabeth Vielhaver and others to contest the will of Mary Hansing, deceased, the named defendant being represented by Arthur T. Mayfield as guardian ad litem. From a judgment for plaintiffs, the defendants appealed. Affirmed. By the court in banc.
Arthur T. Mayfield, Charles B. Clarke, Walter C. Clarke and Fae W. Patrick, for appellants. Samuel Offutt, John F. Linder and George Young, for appellees.
Action by appellees against appellants to contest the last will and testament of Mary M. Hansing. To the complaint there were answers in general denial.
There was a trial by jury, which resulted in a verdict in favor of appellees, on which judgment was rendered, from which, after appellants' motion for a new trial was overruled, this appeal, appellants assigning as error the court's action in overruling their motion for a new trial.
Appellants undertake to present error of the court in failing, before the trial, to appoint a guardian ad litem for Elizabeth Vielhaver, a minor defendant, then twenty years of age and 1. since this appeal of the full age of twenty-one, as a cause for a new trial, and the question is presented in no other way. Assigning such a reason in a motion for a new trial presents no question. Evans v. State, ex rel. (1877), 58 Ind. 587, 589.
Even if the question were before us for our consideration, the court did not err in appointing a guardian ad litem for said appellant after the trial had commenced and when it was 2. discovered that she was a minor. See Earl v. Cotton (1908), 78 Kans. 405, 96 P. 348; Galbraith v. Pennington (1914), 184 Mo. App. 618, 623, 170 S.W. 668; Seiden v. Reimer (1920), 190 App. Div. 713, 180 N.Y. Supp. 345; Greenman v. Cohee (1878), 61 Ind. 201; Gibbs v. Potter (1906), 166 Ind. 471, 475, 77 N.E. 942, 9 Ann. Cas. 481.
There was no error in overruling appellants' motion for a new trial on the ground of newly-discovered evidence. Such evidence, as it is set out in appellants' motion, is simply 3. cumulative, and it has been many times held that a new trial will not be granted for such cause where, as here, the evidence is merely cumulative. Simpson v. Wilson (1855), 6 Ind. 474; Dodds v. Vannoy (1877), 61 Ind. 89; Offutt v. Gowdy (1897), 18 Ind. App. 602, 48 N.E. 654; Westbrook v. Aultman (1891), 3 Ind. App. 83, 28 N.E. 1011.
It does not appear that such evidence would probably bring about a different result. Smith v. State (1896), 143 4. Ind. 685, 42 N.E. 913; Westbrook v. Aultman, supra.
Further, there was no sufficient diligence shown in 5. discovering the evidence. The evidence is ample to sustain the verdict.
Affirmed.