6 Kan. App. 833 | Kan. Ct. App. | 1897
On the fourth day of April, 1893, the plaintiff filed its petition in the court below for a new trial in the case of Stove Co. v. Galland (ante, p. 831), just affirmed by this court. Several grounds for a new trial are alleged, all of which have been considered in that case except the grounds of newly discovered evidence and that the decision of the court
Plaintiff now contends that if it is permitted to have a new trial it will prove, by newly discovered evidence, “that the answer filed by the defendant, Gal-land, was false and untrue, and that it was well known to be false and untrue at the time it was filed.” The alleged evidence consists of certain letters written and payments made by defendant to plaintiff more than a year before plaintiff filed its reply. This evidence was in the possession of plaintiff at the time its reply was filed, and has been ever since; so, cannot be considered as newly discovered. Our attention is called to certain statements of counsel for defendant alleged to have been made long after the trial. These statements cannot be construed to be an admission of defendant through his attorney.
A new trial will not be granted where the alleged newly discovered evidence was in possession of the party applying, at the time the issues were made up and at the time of trial. It must be shown that the existence of such evidence came to the knowledge of the party applying, after the trial, that it is material, and that the party applying has been diligent. It must appear to the court that, if a new trial should be granted, a different judgment would probably be rendered.
The judgment will be affirmed.