Knox v. Benbo

THE COURT.

The plaintiff brought this action to have the paternity of a minor child of the defendant adjudicated. The complaint alleged that the defendant claimed that the plaintiff is the father of the child, but that the claim is without foundation. The defendant answered and filed a cross-complaint alleging that the plaintiff is the father and prayed for judgment so declaring and awarding support for the child. Findings and judgment were made and en

[780]

tered in favor of the defendant and cross-complainant, and from the judgment the plaintiff has appealed.

Two points are made in support of the appeal. First, that the evidence is insufficient to support the findings, and, secondly, that the court erred in denying the plaintiff’s motion for a new trial.

It is deemed unnecessary to relate the evidence adduced in support of the findings. The record has been carefully reviewed. Although sharply conflicting, the evidence on behalf of the defendant is amply sufficient to support the findings. We find nothing therein which would justify the conclusion contended for by the plaintiff that the testimony on behalf of the defendant is inherently improbable.

The motion for a new trial was made on the ground, among others, of newly discovered evidence. It appears that the evidence alleged to be newly discovered was at the time of the trial known by and available to the then counsel for the plaintiff, who was substituted out of the case and does not appear as counsel on the appeal. However, the evidence, if produced, would have been cumulative only and in view of the record presented would not have changed the result. The motion for a new trial was therefore properly denied.

' The judgment is affirmed.