Able & Co. v. Frazier ( 1876 )

Adams, J.

I. We are inclined to think that the defendant did not use due diligence in the discovery of the new evidence.

í new trial?iíeCsupreme eorn-t. The record shows that it was several days from the beginning to the end of the trial. The question as to the applica^011 of the payments on the school house lumber was raised tke first day. The source of defendant’s proper evidence to disprove the alleged application, to-wit: the school district officers and receipts, must have been suggested to his mind on that day. Those officers and receipts were not more than fifteen miles distant. No effort was made to obtain them. Still, the fact that defendant’s affidavit shows that he was so ill during the trial as to be scarcely able to attend court, leaves a possible doubt in our mind, as we presume it did in the mind- of the court below, whether the denial of a new trial would not do the defendant injustice.

This court will not reverse the order of the court below granting a new trial, if no abuse of discretion is shown.

2. — —: cumudence. II. It is claimed, however, by the appellant, that the newly discovered evidence is merely cumulative. It is true the defendant testified upon the trial that the payments in question, were not made or applied on the school house lumber, and the object of the newly discovered evidence is to show the same thing. Yet it must be observed that it is shown by a distinct and separate fact, and that is that the school house debt had been previously paid.

Evidence is not cumulative merely because it tends to establish the same ultimate or principally controverted fact. Cumulative evidence is additional evidence of the same kind to the same point. Parker v. Hardy, 24 Pick., 246.

The order of the District Court granting a new trial is

Affirmed.