Heilner v. Brown

New Tbial — Affidavit of Newly Discovered Evidence — Insufficient Jurat. — Where an affidavit was produced and read in' the district court, without objection, on motion for a new trial, on the ground of newly discovered evidence, and an objection is made in this court that the same is insufficient and void for want of a sufficient jurat, held, that this court will not consider the objection that it should first have been made in the court below. Same. — An order for a new trial on the ground of newly discovered evidence, being largely discretionary with the trial judge, held, this court will not disturb the same, unless appellant shows an abuse of such discretion. (Syllabus by the court.)

APPEAL from District Court, "Washington County. An affidavit on motion for a new trial that is not sworn to is not sufficient. (McDermaid v. Russell, 41 Ill. 489; Ladow v. Groom, 1 Denio, 431; People ¶. Sutherland, 81 N. Y. 5-8; Knight v. Elliott, 22 Minn. 551; Tunis v. Withrow, 10 Iowa, 307, 77 Am. Dec. 117.) An affidavit on motion for a new trial is not sufficient that alleges “that affiant could not, with reasonable diligence, have discovered and produced said evidence at such former trial.” It must set forth the acts constituting the diligence used, or reason for not performing such acts, so the court may judge of the same. (Wilkes v. Wolback, 30 Kan. 375, 2 Pac. 508; People v. Cummings, 57 Cal. 88; Stoakes v. Monroe, 36 Cal. 388; Penno v. Chapin, 27 Minn. 519, 8 N. W. 762, 763; Chapman v. Moore, 107 Ind. 223, 8 N. E. 80; Pinschower v. Hanks, 18 Nev. 99, 1 Pac. 454; People v. Jones (Cal.), 8 Pae. 611; Carson v. Henderson, 34 Kan. 404, 8 Pac. 727; People v. Superior Court, 5 Wend. 115, 10 Wend. 286; Hopper v. Moore, 42 Iowa, 563; People v. Cummings, 57 Cal. 88.) No appeal lies from an order granting a new trial, as such order is not a “final decision,” within the meaning of the Revised Statutes of the United States, section 1869. (Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. Rep. 15; Coughlin v. District of Columbia, 106 U. S. 11, 1 Sup. Ct. Rep. 37; Baker v. White, 92 U. S. 176-179; McComb v. Commissioners, 91 U. S. 1; Davis v. Crouch, 94 U. S. 514.) Confessions and statements of defendant are not cumulative evidence. (Parker v. Hardy, 24 Pick. 246; Gardner v. Mitchell, 6 Pick. 116; Chat-field v. Lathrop, 6 Pick. 417; Flannagan v. Newberg, 1 Idaho, 84; Gray v. Harrison. 1 Nev. 509; Wall v. Trainer, 16 Nev. 131-135.)