The Richmond palladium and sun-telegram. [volume] (Richmond, Ind.) 1907-1939, 1908-04-28
So Says Study in His Appeal
For a Rehearing of the
ith-Vaughan Action Be-
fore Judge Fox Today.
OBJECTIONS TAKEN TO
MUCH OF TESTIMONY.
Some of This Should Have Not
Been Admitted and Further
more the Jury Was Not In
structed Correctly, He Says

Argument on the motion OF the de |
Tense for a new trial in the case OF
Susan J. Smith VS. John D. Vaughan, |
was heard by Judge Fox in the Wayne
circuit court this morning. Thomas
J. Study. chief counsel for Mr..
Vaughan in the recent trial of the
| case presented the motion and made
| the argument. Both Henry |. John
son and J. F. Robbins spoke in the
| interests of the plaintiff. Judge Fox
| took the matter under adViScment.
| The defense presented a large amount
of testimony which the court was
asked to review. The motion for a
retria set forth twenty nine reasons
as to why the petition should be
granted. The court was charged with
numerous errors. The customary de-
claratiOns that the verdict was not in
accord with the evidence and that it
was contrary to law were presented.
Mr.. Study laid particular stress on
the fact that the court permitted he
| plaintiff to amend the complaint after
the trial had been in progress for a
week. He charged that the amend
ment constituted an entirely new
cause of action. The original COM
plant charged Mr.. Vaughan with
making contract to marry the plain
, tiff in June 1904. The plaintiff ;Ijsert-
ed that it was in 1907 that the final
| refusal to marry was given. Under
the law, a contract to marry must be
executed within one year unless it be
put in writing. The defense claimed
the contract had not been written and
! the time limitation had expired. The
amended complaint called attention to
! Il promise of marriage alleged to have
been made in April Of 1906. 1t was
on this contract that the plaintiffs
counsel chose TO rest its case after a
| week of trial.
The plaintiffs counsel claimed per
mission had been given to amend the
complaint in accord with infOrma-
tiOn given the court previously, that
application to do SO, would be made
some time during the course of the
trial 1t was held that a plaintiff has
the lawful right at any time to amend
the complaint so as to make it con-
form to the evidence. Both Mr.. John
son and Mr.. Robbins contended there
had been no advantage taken Of the
law and no subterfuge has been re-
sorted to in the effort 10 circumvent
the meaning of the statutes. 1t was
held the privilege of an amended COM
plant always is allowed. An effort
was made to refute all the allie cations
OF Mr.. Study.
Study's Charges.
| In his motion for new trial Mr.
Study charged the court erred in ad-
mitting evidence in regard TO the mar
riage preparations alleged TO nave
been made by the plaintiff; the court
erred in inStructing the jury; the
court ought to have instructed the
jury specifically as to the parts Of
evidence. which were withdrawn: the
court erred in admitting evidence 10
show the specific value of real estate
; owned by the defendant; the court er-
red in permitting the plaintiff and her
sister to testify in rebuttal in regard
. to the trip of Mr.. Vaughan TO Ken
tucky in 1903; the court erred in per
, mitting the plaintiff to read in evi-
dence to the jury portions of the de-
position Of Rene Julian; the court err
red in permitting the plaintiff to testi-
l fy TO writing a letter from Williams
port to the defendant; the court erred
in refusing to permit the defendant
| int rnHnco tho of A II
Hunt 10 prove the time the defendant
was absent from the city in 1906 the
court erred in permitting Mrs. Pitts
ford, Bertha Nixon, Hazel Phelps, Mil
dred Phelps. Florence Ninton and Viii
liam Willcutts 10 testify as to the
acts of the defendant prior 10 the
making OF the alleged verbal contract
10 marry: the court erred in permit
ting the amendment TO the complaint:
the court erred in permitting the testi
| mOny Of Florence Vinton as 10 thu de
= fendant kissing her and the evidence
e Of Claude keever as TO the defendant
= kissing Hazel Phelps; the court erred
= in permitting the testimony of the
/ plaintiff in regard TO contents of the
2 letter written to Mr. Vaughan asking
him to call at time when the brother
was present; the court erred in per
mftting the plaintiff and others to tes
tfy in regard TO the defendant send
ing flowers to Mildred Phelps al
O Fountain City, when she graduated
. the court erred in admitting evidence
in regard TO the defendant paying
for a cake sent Hazel Phelps: the
n court erred in refusing 70 permit tbs
= defendant to prove by ". 4. BOND