Carman v. Roennan , 45 Iowa 135 ( 1876 )

Day, J.

I. It is urged that the verdict is not supported by the evidence. It is clearly proved that defendant’s cattle damaged the crops in question. The evidence is very conflicting as to the character of the fence inclosing the premises. It is probable that, if we were to determine the question as an original one, we would, from the evidence in the abstract, find that plaintiff’s fence was not a lawful one. But the verdict is not unsupported by the evidence to an extent that would justify our, disturbing it. Besides, a supplemental agreed abstract is submitted, in which it is admitted the abstract does not contain all the evidence.

1. new trian ereílyevi-cov" dence. II. It is claimed that the motion for a new trial should have been sustained on the ground of newly discovered evidence. The newly discovered evidence relates to the condition of .the partition fence between Oar-man an(j Jj0We. The condition of this fence was distinctly put in issue by the pleadings. Appellants do not show any diligence to discover testimony respecting it. Of the witnesses who, it is claimed, will testify to newly discovered facts, two were witnesses upon the former trial, and another was a juror, and it is not claimed that the only remaining one will testify to any fact other than can be proved by the other three. Appellants should have shown the employment of diligence to secure testimony on this point. First National Bank of Iowa City v. Charter Oak Insurance Company, 40 Iowa, 572; Usher v. Pratt, 9 Iowa, 59; Richards v. Nuckolls, 19 Iowa, 555; Kilburn v. Mullen, 22 Iowa, 498.

2. evidence: practice. III. In rebuttal plaintiff was permitted to prove the condition of the fence between him and Nowe. Defendants insist that this testimony was not rebutting evidence, and that it should not have been admitted. As the abstract does not contain all the evidence, we have no means of determining whether or not the evidence was rebutting, and we will presume that the action of the cohrt below respecting it was correct. Besides, this is a matter which rests very largely in the discretion of the trial court. Hubbell & Bro. v. Ream, 31 Iowa, 289; Crane v. Ellis, Id., 510; Cannon v. Iowa City, 34 Id., 203. No error appears in the record.

Affirmed.