Wintermute v. Stinson ( 1872 )

By the Court.

Berry, J.

Defendant moved for a new trial ■upon two grounds, viz.:

1st. Surprise occurring at the trial. As to this ground the counter affidavit of plaintiff fairly meets and negatives the affidavits read by defendant, and we see no reason whatever for disturbing the action of the court below in giving credit to the former, rather than the latter.

2d. Newly discovered evidence. As • to that portion of defendant’s affidavit relied upon in support of this ground, we agree with plaintiff’s counsel that it does not clearly and explicitly show that the evidence claimed to be newly discovered was not known to defendant in season for the trial. At any rate the affidavit altogether fails to show any diligence upon defendant’s part in making any effort by inquiry or otherwise, to discover and produce the alleged newly discovered evidence, or any other evidence, in support of that branch of his defense upon which the alleged newly discovered evidence bears.. Gen. Stat., ch. 66, sec. 235, subdiv. 6.

Order denying new trial affirmed.