This was an action, by the appellees against the appellant, to recover the value of certain lumber sold and. delivered by appellees to appellant. It originated before a justice of the peace, where the appellees had judgment for twenty-four dollars and thirty-five cents; and, on appeal to the circuit court, the appellees again had judgment for twenty-three dollars and ten cents.
The appellant hars assigned for error, that the complaint does not contain facts sufficient to constitute a cause of action, and that the court erred in overruling the motion for a new trial.
The cause of action, as amended before trial in the justice’s court, is unquestionably good.
The principal reason relied upon for a new trial was newly-discovered evidence. It is sufficient to say, in reference to this reason for a new trial, that no facts are stated showing that appellant had used any diligence to discover the new evidence before the trial. This is essential, as has been decided from 1 Blackford down to the present time. Coe v. Givan, 1 Blackf. 367 ; Mason v. Palmerton, 2 Ind. 117 ; Ruger v. Bungan, 10 Ind. 451; Rickart v. Davis, 42 Ind. 164; Bartholomew v. Loy, 44 Ind. 393.
This objection being fatal, it is not necessary to notice other ■questions presented by counsel for appellee.
The cause has been twice tried, with the same result. We
The judgment is affirmed, with costs.