delivered the opinion of the court.
Plaintiff in error is hereinafter referred to as Buchanan, defendants in error as Burgess and Phillips resрectively, and one Katherine McHugh, deceased, as McHugh.
Burgess and Phillips, alleging ownershiр and right of possession, brought ejectment against Buchanan to recover six lots in the city оf Denver, and damages for detention. Buchanan admitted their ownership but denied their right of pоssession. This right he claimed under an oral contract for a ten year lease, on the faith of which he had made valuable improvements. He counterclaimed for specifiс performance of that contract, or $9,000 for the improvements plus the good will of а business established on the lots. McHugh was formerly the owner of said lots and it is alleged that Burgess and Phillips, who took as her heirs, did so with full knowledge of the contract. Trial was to the court and to rеview its judgment against Buchanan for possession and damages he prosecutes this writ and asks thаt the same be made a supersedeas. As will be observed from what is hereinafter said no further statement of facts is necessary. There are seven assignments which we consider in ordеr.
1. The first assignment is, ‘ ‘ That the court erred in admitting, over the objection and exception of defendant, incompetent, irrelevant and immaterial evidence”; *309 and the second, “in rejеcting competent, relevant, and material evidence offered on behalf of dеfendant.”
Neither of these assignments is good under our Rule 32 as has been repeatedly held.
Strassheim v. Cole,
2. The third assignment is, ‘ ‘ That the judgment of said court is contrary to the- evidence.” This is completely answered by counsel’s own brief wherein he states “that the testimony of plaintiffs’ witnesses and that of the dеfense is in unusually sharp contrast. It is not in agreement upon one point of major consеquence to the issues.” That admission is supported by the record. Thus is presented a casе of disputed facts found on conflicting evidence, with which, under the well established rule, we cannot interfere.
3. The fourth assignment is, “That the judgment of said court is contrary to the law”; and the fifth, “that the judgment of said court is contrary to the law and the evidence.”
These assignments are equally insufficient.
Ohio Cas. Ins. Co. v. Colo. P. C. Co.,
4. The sixth assignment is, “That the said court erred in overruling and denying defendants’ motion for a new trial.” This assignment can not be considerеd.
Kobebell v. Diers Bros. & Co.,
On all the foregoing assignments see also our Rule No. 32, not here quoted because set out in several of the foregoing authorities.
5. The seventh assignment is, “From the record in said cause it affirmatively appears that the judgment entered by the court was obtained by false and рerjured testimony without the introduction of which a judgment for the defendant would be mandatory.”
False testimony is not one of the grounds for a new trial enumerated by the Code. Civil Code, p. 148; C. L. *310 1921, §237. In some jurisdictions it appears that false testimony is ground for a new trial, in others not. "Where it is so it must be clеarly established, and that the testimony was by a party, or induced by him, and generally that the witness has bеen convicted or is dead. 46 C. J. p. 230, §186.
The reason for all this is obvious. If every judgment could be attаcked on a mere allegation, supported by affidavit, that perjury had been committеd, the same showing could be made as to each succeeding judgment and litigation be endless. Counsel for Buchanan, in support of his contention that perjury is a sufficient ground for a new triаl, cite the following:
Wells Fargo & Co. v. Gunn,
A more serious defect, however, is that the suрporting affidavit is insufficient. It is made by Buchanan on information and belief. How he learned what the two witnesses therein mentioned would testify to is not disclosed. The residence of one does not appear. It is al *311 leged that the other is in Denver. Their affidavits are not presentеd and that failure is unexplained. The allegations of diligence are mere conclusions unsupported by facts.
If the affidavit of the proposed witness is not produced a valid reason for such failure must be given.
Colo. Springs and I. R. Co. v. Allen,
Por the foregoing reasons the judgment is affirmed.
Mr. Chief Justice Campbell not participating.
Mr. Justice Holland dissents.