Nov. Term, 1854. HAASE V. ROEHRS CHEID. December 19. APPEAL from the Wayne Court of Common Pleas. DAVISON, J.-Wilhelm Haase, at the January term, 1853, filed a petition in the Wayne Common Pleas, setting forth that John Roehrscheid died in the year 1849, intestate, leaving personal estate worth 2,350 dollars, which estate has been finally settled by a proper administrator; that four- Tuesday, teen years prior to John's death, the plaintiff became the husband of Barbara Roehrscheid, the sister and one of the heirs of the intestate; that in September, 1849, just three months after the death of her brother, she died, leaving two children, the issue of her marriage with the plaintiff, viz., Magdalena Haase and Wilhelmina Haase, the former aged seven, and the latter thirteen, and also one child by a former husband, named George Paulus; that George Roehrscheid, the defendant, was appointed by the Probate Court of Wayne county guardian of these children, and in that capacity received 470 dollars, the share of Barbara in the intestate's estate, to which his wards were entitled as her heirs, and of which 333 dollars and 33 cents belonged to the plaintiff's children. The petition states that the plaintiff, and both the children, reside in the state of Ohio; that on the 11th of March, 1851, he was appointed by the Court of Common Pleas of Hamilton county in that state, their guardian, and as such was duly sworn and gave bond, &c., and that an authenticated copy of his letters of guardianship is now on file in the Wayne Common Pleas, &c.; that he has maintained and still continues to maintain his children by his personal labor; that he has educated them, as far as his limited means will enable him, but that they are in need of further education; and for the purpose of their maintenance and education, the petition prays an order directing the defendant to pay into Court, for the plaintiff's use, such sums of their moneys in his hands as may seem right, &c. There was a demurrer sustained to the petition, and judgment given for the defendant, &c. The character in which the plaintiff sues, whether as parent or guardian, is not plainly shown; but there being 1854. Nov. Term, no sufficient ground stated for a recovery as guardian, the petition must be regarded as an application to the Court by a father, who desires to procure means from the estate of his minor children for their support and education. HAASE V. ROEHRS- In relation to this subject, there is a statute which provides that "every guardian shall have the custody and tuition of such minor, and the management of such minor's estate, during minority," &c., "provided, that the father of such minor, or, if there be no father, the mother, if suitable persons respectively, shall have the custody of the person and the control of the education of such minor;" that "when any ward has no father or mother, or such father is unable, or fails to educate such ward, it shall be the duty of his guardian to provide for him such education as the amount of his estate may justify." 2 R. S. 1852, p. 324, ss. 6 and 9. Under these provisions it becomes the duty of the Court, a proper case being presented, to direct the guardian to pay over an amount of the ward's estate necessary for his maintainance and education. But is such case shown by the petition? It alleges, 1. That the plaintiff had maintained and still maintains his children by personal labor. 2. That he has educated them as far as his limited means will enable him, but they are in need of further education. The first allegation is insufficient. It is the duty of a father to support and educate his minor children, and unless he can show affirmatively that he is, in point of means, unable to perform that duty, he will not, for such purpose, be allowed a claim upon their estate. No want of ability in the plaintiff to support his children is indicated by the language used in the allegation. But the second charge is, in our opinion, sufficient to authorize the Court to hear the case upon evidence. It is, in effect, alleged that the children are in want of education, and that their parent is unable to contribute means for that purpose. This brings the case, so far as it relates to the education of the minors, within the provisions above quoted. We think, therefore, that the demurrer should have been Nov. Term, overruled. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. T. Means, for the appellant. 1854. NAGLE V. HORNBERGER. NAGLE V. HORNBERGER. The Supreme Court will more readily control the discretion of the Court below in refusing a new trial than in granting it, because the refusal operates as a final adjudication between the parties. The granting of a new trial by the Circuit Court is a matter within its sound discretion, and will not be disturbed by the Supreme Court unless a flagrant case of injustice is made to appear. ERROR to the Franklin Circuit Court. DAVISON, J.-Nagle sued Hornberger in an action of trespass, in the Dearborn Circuit Court, for an assault and battery, and in that Court recovered a verdict for 400 dollars. Upon the defendant's motion, a new trial was granted. Thereupon he moved for and obtained a change of venue to the Franklin Circuit Court. In the latter Court there was a verdict and judgment in favor of the plaintiff for 100 dollars. The plaintiff contends that the Circuit Court erred by sustaining the motion for a new trial, and upon that error alone he seeks to reverse the judgment, and asks this Court to set aside all the proceedings in the case subsequent to the first verdict, and direct the Dearborn Circuit Court to render a judgment thereon in his favor for the 400 dollars. The reasons assigned for a new trial were these: 1. The verdict was contrary to law and evidence. 2. The jury disregarded the charge of the Court. 3. The damages were excessive. 4. Improper conduct of the jury. 5. Newly discovered evidence. 6 69 134 604 Tuesday, Nov. Term, 1854. NAGLE V. HORNBERGER. The two last reasons were strongly supported by affidavits; but their force was, to some extent, impaired by counter affidavits produced by the plaintiff. As a general rule, the Supreme Court will always more readily control the discretion of the Court below in refusing a new trial than in granting it, because the refusal operates as a final adjudication of the rights of the parties. Oliver v. Pace, 6 Georgia R. 185. Also it has been ruled "that the granting of a new trial by the Circuit Court is a question of sound discretion, which will not be disturbed in an appellate Court, unless a flagrant case of injustice is made to appear." Powers v. Bridges, 1 Greene 235. The principle recognized by these decisions is no doubt correct. In the case before us, we have carefully examined the affidavits, both for and against the alleged reasons for a new trial, and are satisfied that no injustice could result from the discretion exercised by the Court. The newly discovered evidence, it is true, was merely cumulative, and that alone is considered insufficient to support such motion; but the conduct of the jury during the trial does not appear to have been strictly correct. The trial continued several days, and as the Court adjourned from time to time, the jury, against its express order, separated, and boarded and lodged apart from each other. This was not in accordance with their duty as jurors, and, under the circumstances as they appeared to the Court, may have constituted a cause sufficient to set aside the verdict. In addition, it is not even clear that the weight of evidence sustained the verdict. There is nothing in the record that would authorize us J. Ryman, for the defendant. Nov. Term, 1854. BARNES and Another v. McALILLY. Points raised by the record may be treated as having been waived by the appellant, under a rule of the Supreme Court, by a neglect to file a brief. APPEAL from the Warren Court of Common Pleas. Per Curiam.-Complaint on note. Judgment by default for the plaintiff. The only point raised by the record, if indeed it is, relates to the time of the service of process. The Court below was satisfied that it had been served ten days before Court. So says the record. Were there really anything in the point, we might treat it as waived, there being no brief in the case (1). The judgment is affirmed, with 1 per cent. damages and costs. J. R. M. Bryant, for the appellants. L. Barbour and A. G. Porter, for the appellee. (1) See note to Howard v. Cobb, ante, p. 5. GAFNEY V. REEVES. Tuesday, GAFNEY and Others v. REEVES. Exhibits, under the chancery practice, might be proved by parol. Evidence offered in proof of an exhibit may be placed upon record by a bill of exceptions. Where proof of an exhibit was necessary to support a decree, it will be presumed to have been given, unless the contrary appear by bill of exceptions or be otherwise shown by the record. APPEAL from the Wayne Circuit Court. PERKINS, J.-Bill to foreclose a mortgage. It alleges that one Abraham Kinsey owned the mortgaged property, and sold it to Michael Gafney, giving a bond for a deed, and that he had received the purchase-money. It further Tuesday, |