Hayward v. Ormsbee , 7 Wis. 111 ( 1859 )

By the Court,

Whiton, C. J.

On the trial of this cause, the circuit court was requested to instruct the jury, and among other things, did instruct the jury as follows:

“ That to enable the plaintiff (the defendant in error) to recover in this action as the next of kin of Rodney Edgar Ormsbee, it is necessary for the plaintiff to show by compe-pent and satisfactory testimony, the following facts :

“ 1st. That the said Rodney Edar Ormsbee is dead, and was, at the commencement of this snit.

“2d. That the said Rodney Ormsbee, was born in lawful wedlock, and the plaintiff is bound to show by legal evidence to the jury’s satisfaction, that he was married to the mother of said child at the time of his birth.

“ Sd. That the mother of such child is dead and about the time of such death as near as may be,” etc.

“ 4th. That the said child is the identical person named in the deed from Moses M. Strong to Rodney Edgar Ormsbee, bearing date November 20th, 1840, recorded January 9th, 1841, and read in evidence on the trial by the plaintiff’s counsel.”

We think these instructions were correct, and properly stated the principles of the law applicable to the facts and circumstances of the case.

The bill of exceptions purports to contain all the evidence material to the questions involved in the case, and upon looking into the testimony, we do not think that there is any satisfactory proof of the legitimacy of Rodney Edgar Ormsbee, .or of the death of the mother. The jury therefore disregarded these instructions of the court, when they found upon the evidence, as they did do, for the defendant in error. The degree or quantity of evidence introduced upon those points, would not justify the jury in concluding that Rodney Edgar Ormsbee was the legitimate child of the plaintiff below, and that the mother of such child was dead. The circuit court should have granted a new trial, because the verdict was unsupported by the evidence, and contrary to the law, which it had laid down for their guidance. The refusal of the circuit court to grant the motion for a new trial was erroneous, and requires the interference of this court. The judgment of the circuit court is therefore reversed upon that ground.

We express no opinion upon the other points made and discussed upon the argument.

The judgment of the circuit court is reversed and a new trial ordered.