Simpson v. Wilson

Gookins, J.

After a verdict for the plaintiff in this cause, the defendant moved for a new trial, on the ground of newly discovered evidence, upon the affidavit of himself and of the witnesses by whom he expected to make the additional proof. The Court overruled the motion *475 and gave judgment for the plaintiff. The bill of exceptions does not contain the evidence given on the trial.

W. Grose, for the appellant. E. Johnson, for the appellee.

It is incumbent on the party asking a new trial on account of newly discovered evidence, to show, 1. That it has come to his knowledge since the trial; 2. That it was not owing to a want of diligence that he did not know it sooner; and 3. That it would probably produce a different result.

On the last point we can form no opinion, because we do not know what was proved on the trial. Where a party asks for a new trial on the ground of newly discovered evidence, he must set forth in his bill of exceptions the testimony which was submitted to the jury, so as to enable the appellate Court to judge whether the result would be altered by the new testimony.

The new testimony may have been cumulative only; and if so, a new trial will not be granted; and we can not know that it is not cumulative unless w;e are informed what had been proved before. We must presume that the decision of the Common Pleas in refusing a new trial was right.

Per Curiam.

The judgment is affirmed, with 3 per cent, damages and costs.