Davis v. Melvin

1 Smith & H. 60

• Court: Indiana Supreme Court
• Decided: May 15, 1848
• Status: Published

Opinion

Smith, J.

— “The record shows nothing to authorise the conclusion that the court erred.

“ The persons whom the plaintiff wished to have sworn may not have been competent witnesses. The party alleging error must show error, or it will be presumed the court did right. It is therefore unnecessary to decide, in this case, whether, as a rule of practice, oral testimony should be received of such facts, in support of a motion for a new trial.

“ The Revised Statutes, eh. 40, § 248, p 718, provide, that if either party shall cause more than three witnesses to be subpoenaed to prove the same identical facts, such party shall pay the whole costs occasioned by such additional number of witnesses. The provision is general, and we cannot say it is not applicable when the witnesses are called to impeach the credibility' of other witnesses. As the record does not show the contrary, it must be presumed that the witnesses, in this case, all testified to the same identical fact.”

Judgment affirmed, &c.