34 Kan. 404 | Kan. | 1885
The opinion of the court was delivered by
This case was before the court in 1883, upon the question of priority between attaching creditors, when it was here adjudged that the attachment liens of the present plaintiffs were subsequent to the lien of the defendants, and the judgment of the court below was reversed. (Henderson v. Stetter, 31 Kas. 56.) Following immediately upon the reversal, Carson, Pirie, Scott & Co. and "Wm. Ziock & Co. filed in the district court a petition applying for a new trial upon the ground of newly-discovered evidence, which they alleged could not, by reasonable diligence, have been discovered by them and produced at the original trial. A trial upon this petition was had before the court on August 2,1884, when the application for a new trial was denied; and on this ruling error is assigned. In the action brought by C. M. Henderson & Co. against N. Stetter they alleged in their petition that their claim against Stetter was due and payable, and in the affidavit filed by them to obtain an order of attachment, it was stated “that said claim is just, due, and wholly unpaid;” and the order of attachment was issued by the clerk of the district court, as upon a claim that was then due and payable. The plaintiffs now claim that since the trial of the motion in this case, and on December 19, 1883, they first discovered evidence tending to
The judgment of the district court denying the application will therefore be affirmed.