Lisher v. Pratt
9 Iowa 59
Iowa
1859
Check Treatment
Wright, C. J.

The rule is well settled, that a party who asks a new trial upon the ground of newly discovered evidence, must show that such evidence is material, and that he not only did not know of it before the trial, but that he would have been in the same ignorance by the use of due diligence. The affidavit and showing of the defendant in *60this case, fails to do either of these things. So far from proving that he could not have had knowledge of what he calls the “new evidence,” by the use of due diligence, he shows that if he had made any, the slightest effort, he' could have hadt he benefit of it all. Mays v. Dreavor, 1 Iowa, 216.1

" The case was tried by the court. The record does not purport to set out all the evidence. Nor do we find any thing which can be properly styled “ a statement of the facts found, with the conclusion of the court founded thereon,” within the meaning of section 1793 of the Code. Under such circumstances, we cannot say whether the judgment is in accordance with the testimony or against it, nor that it is contrary to law.

Judgment affirmed.

Pelamourges v. Clark, et al, supra.