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26 Wis. 175

Dierolff v. Winterfield

Wisconsin Supreme Court

Decided June 15, 1870

Wisconsin Supreme Court · decided 1870-06-15

This action was brought by Mrs. Dierolff, in 1868, 1. Upon a promissory note for $600, with interest at seven per cent., alleged to have been given by defendant to plaintiff, for moneys loaned by her to him, May 23d, 1865. 2. Eor $858 alleged to be due for food, attendance, washing and other necessaries furnished by plaintiff to defendant at his request. 3.

Cited by 1 later decisions — most recently May 1913

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1870-06-15

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Cole, J.

¶1We are inclined to think that a new trial should have been granted in this case, on the ground of newly discovered evidence. The plaintiff, in her testimony, when asked how she obtained the money which she said she loaned the defendant, stated that friends in Chicago collected about $660 in contributions for her, when her husband fell into the lake at that city, and was drowned. The affidavits of Leon-hard Hesse, Wilhelmina Hesse and Richard Lotholz, were used in support of the motion for a new trial. These persons state in their affidavits that they were living in Chicago at the time the plaintiff’s husband was drowned; knew them well, and were acquainted with their pecuniary condition. L. Hesse says that he went at plaintiff’s request, and in her company, to obtain contributions from the residents of Chicago, and that between fifty and sixty dollars, in all, were collected by them, which amount was divided between them; and that he positively knows that nobody besides himself raised any money or means for her; and that she was entirely destitute of means except the one-half of the money thus collected. W. Hesse states in her affidavit that her husband went with the plaintiff to make collections from the citizens of Chicago, and that they succeeded in obtaining, by contributions, in all a sum not exceeding fifty dollars. Lotholz states that he advised the plaintiff, after the burial of her husband, to get a subscription to aid her by contributions for immediate necessities; that thereupon a subscription was drawn; that he and his partner contributed two dollars; knows that the subscription was circulated by plaintiff and Hesse, and that about fifty dollars were raised thereon; and that she received no contribution from any other source.

¶2This evidence was not discovered until after verdict. It seems to us' that it is not merely cumulative to the evidence introduced on the trial, as the plaintiff’s counsel contends; nor is it purely impeaching the tes*180timony given by the plaintiff. The newly discovered evidence rather relates to new and material facts, and is strictly original evidence. It shows, by parties who aided her in raising contributions, the amount the plaintiff obtained by charity in Chicago when her husband was drowned. In our view the evidence is quite important, as bearing upon the defense, and is of a character distinct from any introduced on the trial. Alger v. Merritt, 16 Iowa, 122; O’Barr v. Alexander, 37 Georgia, 195; Grubb v. Kalb, id. 459. There are some peculiar features about the case, and a new trial may subserve the cause of justice. It would probably be improper for us to add more at this time, since we have concluded to send the case back for a new trial.

¶3The judgment of the circuit court is reversed, and a new trial awarded.

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