19 Iowa 555 | Iowa | 1865
The statute declares that those applications shall be tried as other cases, by ordinary proceedings, and it must appear that the grounds therefor could not, with reasonable diligence, have been discovered before, but were discovered after, tbe term at which the decision or judgment was rendered. Rev., § 3116. This case was so tried, and the question is, whether, as a matter of fact, the appellant has sustained by proof the case made by bis petition ? And we think most clearly not. From the great mass of testimony we are unable to see why he could not, with reasonable diligence, have presented the very defense upon which he now insists. He alleges surprise, but there is no sufficient proof of it. He claims that he bas newly discovered evidence which will change the result, and yet much of it he had knowledge of before as well as .since the trial; the balance he might have known, so far as this record discloses, by the use of any fair degree of diligence. In this attitude of the proof the court very properly refused the new trial. For some views upon this subject, see Alger v. Merritt, 16 Iowa, 121, and the cases cited.
Affirmed.