48 Ind. 106 | Ind. | 1874
This was a complaint for a new trial, under-section 356, 2 G. & H. 215. It was filed within a year after judgment was rendered in the action in which the new trial was sought. The substance of the issues in the former action is alleged, and the evidence which was given upon the former-trial is stated. It is then alleged, that “ since the August term, 1872, of the Jackson Circuit Court, he has discovered the following new and material evidence, which he could not have discovered and produced at the trial with the use of reasonable diligence.” The names of the witnesses by whom the evidence can be adduced, and the facts each will testify to, are then stated, andan affidavit from each of the witnesses stating what he will testify is made part of the complaint. The complaint is verified by the oath of the plaintiff. ,
A demurrer to the complaint, alleging a want of sufficient facts, was filed by the defendants and sustained by the court. This ruling is the error assigned.
Applications for new trials, on the ground of newly-discovered evidence, are not regarded with favor by the courts, and are never granted where the party applying might, by the use of reasonable diligence, have had the evidence at the trial off the cause. A party applying for a new trial on such ground must show that he used reasonable diligence to discover and produce the evidence at the fórmer trial. In the case under-consideration, instead of stating what acts of diligence were
It is also urged as objections to the complaint, that the new evidence is only cumulative, and is only for the purpose of impeaching a witness, but we need not examine these questions..
The judgment is affirmed, with costs.