Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-05-10
SUPREME COURT.
DECIsIONOF CASE FILED YESTER-
DAY.

DECISION OF CASE FILED YESTER-
Day.
Jennie Laurel Respondent Us. The State National |
Bank of Minneapolis, appellant.
OPINION.
In its general charge the court instructed |
the jury among other things as follows: .The |
plaintiff starts in this action with the certif-
cate Of deposit. It is admitted that this certf-
cate of deposite upon which she Sues dated April
18th, 1876, was payable to her order. This
constitutes valid contract between the bank
and herself, and having proved that, she es-
tablishes priDa tacie case, p1ina Jdcie title
as between herself and the bank" To this
portion of the charge, defendant excepted gen
| orally without specifying the particular ground
| upon which it was taken. 1t is now urged
that the tendency of this portion of the charge
was to prejudice the defendants case with
the jury, by withdrawing their attention from
| the fact disclosed by plaintiff own testimony,
that the money deposited with the bank, and
for which the certificate was given, belonged
| originally to her husband, as the avails Of the
sale Of his homestead. The effect of which evil
dence, as is claimed, was to destroy the pre-
| sumption arising from the certificate alone,
and to cast upon her the burden of proving q
valid gift of the money from her husband. We
do not think the instruction fairly open to
this criticism. 1t must be construed in con-
nection with the rest of the charge. lmme-
diately following the portion excepted to the
Court, stated to the jury as follows: But
when it is admitted or proven on the trial
that the money was deposited by
Charles Laurel, and that the money
originally belonged to hlm, then the burden
will be changed from the defendant to the
plaintiff; that is, it will be necessary for the
plaintiff in order to recover, to prove valid
gift of the money from Charles Laurel to her
self and the court further expressly instructed
them that there was no question but that the
homestead property for which the money was
! received, belonged to Charles Laurel, and that
the title being in him, of course the money
which was received in payment for such prop
erty was his, and to entitle plaintiff to recover,
she must prove a valid gift from her husband
to herself of this money" In other words,
the court distinctly told the jury that the fact
which oyercame the presumption created by the
} certificate: stood admitted in the case, and
upon the evidence before them considering the
| entire charge, the rule to the effect of the
> evidence and the burden of proof was correctly
3 dence upon which new trial is sought, the
case is not brought within the we'll settled rules
: governing courts in awarding new trial on
such grounds.
The direct tendency and effect of the new
facts which appellant claims to have discovered
since the trial, and for which new trial is
asked, would be to discredit the testimony
: which was given by the plaintiff, and t.
corroborate that given by her husband, Charles
: LAUREL in reference to what proved to be The
: main controverted question of fact on the trial
: This question was, whether the money which
!. was deposited in defendants bank, and TO-
}, which the certificate sued on was issued. wa
d a gift from Laurel to his wife, the plaintiff
[. herein.
e That this was likely to become materia
Ia,,1,i IF md o,ot frip
the defendant must have anticipated from tn
/ character Of the issue and the circumstances 0
the case; and in the exercise of ordinary dill
|. gence it should have procured all the evidenc
le reasonably within its power to establish tn
e fact according to the truth; how the fact wa
l, whether the money belonged to Charles Laure
er as having been realized from the sale of hi
Il homestead who became the purchaser
who paid the purchase money, wher
II the premises were situated, VIII
a. witnessed the execution of the conveyance
when it was done and where probably recorded
es were all, together with the circumstances cor
p nected with the transaction, matters presuml
d. lively within the knowledge of said Laure
lg who was the principal witness for the defenc
ant, and proper inquiries made of him woul
have obtained the requisite information, whic
would have enabled the defendant to hay
seasonably procured proof of the additions
ce corroborative facts, for the establishment
I'd which he now seeks new trial. Such inqu
fleS "OulQ nave FURNISHED pTeSuulpLlVe eV
dence that the deed by which the property W;
conveyed was of record in the office of tt
lg register of deeds that was kept in the vel
IS. building where the trial was had, and an exam
,o ination in that office would have disclosed Il
uo date of it's execution and acknowledgment ar
en- the names Of the subscribing witnesses and
hy the notary before whom the acknowledges
was taken.
- Under these circumstances it inexcu
is able negligence not to consult records thus a
in cessible and to omit making of its princip
;a- witness such inquiries as to facts presumab
=. within his knowledge as would have led to i
VI formation sufficient to enable it to procure
en- season such record evidence and oral testimon
er if any existed, needful preventative
We its case to the jury.
.e In this respect there was failure on the pa
re- of appellant of that reasonable diligence in tt
ho preparation of its case for trial, which mu
~, always be shown excused to justify he
h ,as trial on the ground of newly discovered e'
ne dence.
ot Although the case made by plaintiff is som
If what weak, there is not such want of eviden
Use to support the verdict that appellate cou
a. can set it aside that ground. s
as The judgment below must be affirmed.
- CORNELL j.