The error assigned in this case is the action of the court in overruling appellant's motion for a new trial, the specifications of which motion were: That the decision of the court was 1, 2. not sustained by sufficient evidence; that it was contrary to law; error in admitting certain testimony; and alleged newly-discovered evidence. The evidence given upon the trial of this case is not in the record. See Tozer, Admr., v. Hobbs' Estate (1923), 79 Ind. App. 258, 137 N.E. 715. It therefore necessarily follows that no question is presented as to said first three specifications. As to the alleged newly-discovered evidence, such grounds are not favored in law, and the party asking for a new trial upon such grounds must, in his said motion, show diligence in the matter of procuring testimony; also, that such testimony is not merely cumulative, contradictory or impeaching in its character. Schick v.Blakesley (1922), 80 Ind. App. 253, 134 N.E. 498. We do not have before us, in this case, the evidence given upon the trial, as did the judge who tried the cause. He knew whether or not the alleged evidence was merely cumulative; we do not. He knew whether it was merely contradictory or impeaching; we do not, and must, therefore, presume in favor of the action of the trial judge and that, upon the record before him, his ruling was right.

No error has been shown, and the judgment is affirmed. *Page 267