Opinion
Filed March 4, 1904.
EVIDENCE — Newly Discovered — New Trial, Motion for. Evidence will not be reviewed unless the case made or bill of exceptions contains all of the evidence pertaining to the subject about which it is alleged that error has been committed; and when the certificate of the trial judge contains a statement to the effect that all of the evidence introduced upon the trial is contained in the case made, but the record itself shows upon its face that it does not, and that material depositions were omitted therefrom, the record is the best evidence and will prevail over such certificate. A new trial will not be granted on the ground of newly discovered evidence unless the case made or bill of exceptions contains all of the evidence, so that it may be determined as to whether such evidence is newly discovered or is, in fact, merely cumulative.
(Syllabus by the Court.)
Error from the District Court of Blaine County; before James K. Beauchamp, Trial Judge.
Lookabaugh, Bros., for plaintiff in error.
Seymour Foose, for defendant in error.
Opinion of the court by
The plaintiff recovered judgment for fifteen dollars and costs against the defendant, for damages done by defendant's cattle to plaintiff's crops. Defendant appeals. Although the judge's certificate recites that fact, the record does not contain all of the evidence. Hence, it is impossible to say that the judgment is not supported by the weight thereof. ( Pappe v. American Fire Ins. Company, 8 Okla. 97; Ragains v. The Geiser Manufacturing Company, 10 Okla. 544.)
Nor can we determine that the newly discovered evidence was not cumulative merely. The judgment of the lower court is affirmed, at cost of appellant.
Beauchamp, J., who presided in the court below, not sitting; Burford, C. J., absent; all the other Justices concurring.