46 Mo. 607 | Mo. | 1870
delivered the opinion of the court.
The overruling the motion for a new trial is the only question presented for consideration by this record. It is no ground of complaint to say that the deposition of Fay operated as a surprise upon the party, for that deposition had been filed in the cause for several days before the trial; and if it had not been examined and read before the cause was tried, it was on account of sheer negligence. The reason set up, that the party and his attorney had been too busy in court in attending to other causes to look into the deposition, can not be regarded as a sufficient answer to avoid their want of diligence. If such pretexts were allowed, there would bo no end to the granting of new trials, and litigation would be indefinitely protracted.
The record, that it is pretended was wanted to use on the trial, existed in the court where the trial was had, and by the necessary and proper search and diligence could easily have been obtained. But if the record was admissible at all, it ivas only sought to be used to impeach the credibility of the witness, Fay, and a new trial will not be granted for newly-discovered testimony if its only object is to assail or impeach the credibility of a witness. (Deer et al. v. The State, 14 Mo. 348; Jaccard v. Davis et al., 43 Mo. 535.)
Judgment affirmed.
