The opinion
On Motion for Rehearing.
This court having reversed the judgment rendered by the trial court in favor of contestants, appellees here, and having remanded the cause, contestants have filed this motion for rehearing. As a basis for such motion, they contend, among other things, first, that this court erred in holding that the trial court should have granted appellant’s motion for new trial upon the allega-, tion of newly discovered evidence, to wit, the will of John Kveton, which was the will being offered for probate, and which he alleged could not be found before the termination of the trial, and that by reason of the refusal to grant such new trial the court abused his discretion. Because it is made to appear that appellant failed to exercise that degree of diligence to discover said will before going to trial, and because, had such diligence *679 been exercised and the will not found, appellant should have moved for a continuance to the end that he might procure said will before being forced to trial, and that, as appellant failed to move for such continuance, and having voluntarily gone to trial without the presence of the will, he was not entitled to a new trial as a matter of law; and, second, that this court erred in holding that the testimony of the witness Ed Batía to the effect that John Kveton, deceased, came to his office some three or more years after the time of the execution of Kveton’s will, and had him (Batía) read, and explain said will to .him (Kveton) in the Bohemian language, as Kveton was a Bohemian, and that he, upon such request, read and explained to Kveton the will in the Bohemian language, and that after so doing John Kveton said to him: “That is the way I wanted it to go,” or something to that effect, was admissible upon the issue of undue influence, made by appellees’ pleadings, in that appellees made no attempt to prove such plea, and therefore the testimony objected to being admissible. only as rebuttal evidence was erroneously admitted.
We do not think we should grant appellees’ motion for rehearing upon either of such grounds. We think the undisputed evidence shows that counsel for appellant had exercised due diligence to discover the will of Kveton before announcing ready for trial; that the evidence with reference to'the disappearance of the will at the time of the trial, and the efforts put forth to find the same, was such as would reasonably lead to the conclusion that it had been destroyed or permanently lost, and that there was no reasonable expectation that it could be produced at a subsequent trial. Under such circumstances proponent, appellant here, was unable to make oath that, if the cause be continued, he had an expectation to produce the will at a subsequent term of court.
We now come to a consideration of the second ground stated. We agree with appellees that, if the testimony of Batía, above stated, was admissible only as tending to rebut the plea of undue influence, it should have been excluded, as contestants offered no evidence tending to support their plea of undue influence. While it is true that it appears that the only objection urged to the admission of the testimony was that it would be admissible only as rebuttal evidence to rebut evidence in the event any was offered to support the plea of undue influence, and while it is true that we passed only upon the objection urged, we now, after the question of its admissibility has again been raised, conclude that the testimony was admissible as a circumstance among other circumstances surrounding John Kveton at the time of the execution of the will to show that he understood at the time of such execution that the will was prepared by Ludwig, the scrivener, as his will, and that the two witnesses were signing the same as witnesses, and that he acquiesced in the acts so done by said parties.
In conclusion, counsel who prepared the motion for rehearing says that the case has been tried four times already, and then asks: “How many times do they want? How many is the court going to give them?” To the last question we answer: In passing on the issues presented by this appeal, we have carefully considered the record of the proceedings had at the trial which resulted in the judgment from which this appeal was taken, and none other. We are not concerned as to how many times the cause has been tried, nor the causes necessitating such trials. We are reversing the present judgment, from which this appeal was taken, because we have reached the conclusion, that the trial court committed reversible error, as pointed out in our opinion.
Having made the foregoing explanation, we overrule the motion.
Overruled.