Madden v. Shapard , 3 Tex. 49 ( 1848 )

Mr. Justice Wttkeueb

delivered the opinion of the court.

The propriety of the ruling of the court, in refusing the application for a new trial, is the only question presented by the record.

It is well settled, that a new trial will not be granted on the ground of newly discovered evidence, if the facts proposed to-be proved by the new evidence be not disclosed and set out in the application. [2 Bibb, 179; id. 287; 9 Shep. 246; 1 A.. K. Marsh, 188.] Mor will a new trial, in general, be granted-on the ground of new and material evidence, if supported only by the affidavit of the party. [1 Tyler, 441.] To entitle a party to a new trial for this cause, it is incumbent on him to-satisfy the court that the evidence has come to his knowledge since the trial; that it was not owing to the want of due dilligence that it was not discovered sooner; and that it would, probably, produce a different result upon a new trial, if granted. [2 Pike, 133; 2 Ashmead, 41, 69.] He must also set forth the facts in which the new evidence consists, so that the-court may judge of their "materiality: whether the new evidence be only cumulative; and whether, if admitted, it would probably change the result of the former trial. [3 Humph. 222.] And, for the same reason, when the question is brought up for revision here, the record ought to be accompanied by a statement of facts; otherwise, we may have no means of determining upon the propriety of the application.

In the case before us, there is no statement of facts; the newly discovered evidence is not set out; the party has relied alone on his own unsupported'affidavit, and, in no respect, has brought himself within the rules upon which the sufficiency of his application must depend.

We are of opinion, therefore, that there was no error in the .judgment overruling the motion for a new trial, and that it be affirmed.