2. New Trial — Newly Discovered Evidence — Lack of Diligence. A motion for a new trial on the ground of newly discovered evidence is properly overruled where no facts constituting diligence to have discovered such evidence in time for the trial, are shown. (Manufacturers Finance Co. v. Sherman, 99 Okla. 295, 227 P. 451.) Commissioners' Opinion, Division No. 1.

' " Twine et al. v. Kilgore, 3 Okla. 640, 39 P. 388; Eskridge v. Taylor, 75 Okla. 139, 182 P. 517; Bryan v. Ramsey, 115 Okla. 133, 242 P. 222; Lamb v. Alexander, 83 Okla. 292, 201 P. 519. See, also, Chetopa Motor Co. v. Douglas, 132 Okla. 92, 269 P. 365; Manufacturers Finance Co. v. Sherman, 99 Okla. 295, 227 P. 451; Cogswell Lbr. Co. v. Manahan, 135 Okla. 174, 274 P. 871; Plumbers Supply Co. v. Standard Paving Co., 135 Okla. 196, 274 P. 889; Bardon v. Endejan, 128 Okla. 293, 262 P. 693; Sample v. King, 126 Okla. 63, 258 P. 913. The substance of the affidavits supporting the defendant bank's motion for a new trial was merely cumulative to former evidence, and impeaching in its nature and not such as would likely change the result if a new trial had been granted, and thus fails to meet the requirements of the law and the rules of this court.

The rule was cited with approval in Wachstetter v. Challinor, 114 Okla. 119, 244 P. 194, and in later decisions. See, also, Manufacturers Finance Co. v. Sherman, 99 Okla. 295, 227 P. 451. Magnolia Petroleum Co. v. McDonald, 168 Okla. 255, 32 P.2d 909, was a suit against the Magnolia Petroleum Company for destruction of property by fire caused by the sale by said company to plaintiff of certain gasoline or other highly explosive liquids when the plaintiff had ordered kerosene.

That rule was cited with approval in Wachtstetter v. Challinor, supra, and in later decisions. See, also, Manufacturers Finance Co. v. Sherman, 99 Okla. 295, 227 P. 451. If the proposed witnesses lived in the neighborhood of the plaintiff, and some of them close to his premises, and if one of them first saw the fire and turned in the alarm, as claimed, it is but natural to suppose that they would have known something about the fire, and when the plaintiff failed to ascertain what these close neighbors knew about the matter, it cannot now be said that the plaintiff pursued due diligence and that the facts could not have been ascertained until after the trial.

"Before a new trial will be granted on the ground of newly discovered evidence, it must be made to affirmatively appear that the new evidence would be sufficient to probably produce a different result; and in such case a certain degree of discretion is necessarily vested in the trial court, and its ruling thereon will not be interfered with on appeal, unless this court is able to see that such newly discovered evidence would probably produce a different result from that registered by the verdict of the jury." Manufacturers Finance Co. v. Sherman, 99 Okla. 295, 227 P. 451. "As a general rule, a motion to vacate a judgment is addressed to the sound legal discretion of the trial court, on the particular facts in the case, and its judgment will not be reversed except where a clear abuse of discretion is presented."

" To the same effect are the following cases: Salt Lake Inv. Co. v. Stoutt (Utah) 180 P. 182; Manufacturers' Finance Co. v. Sherman, 99 Okla. 295, 227 P. 451; Wilson v. State, 73 Okla. 227, 175 P. 829; Vickers v. Philip Carey Co., 49 Okla. 231, 151 P. 1023; Ellis v. Mid-Continent Oil Gas Co., 65 Okla. 124, 165 P. 177. So far as we can discover, there is no evidence in this case of any diligence to procure the presence of these witnesses at the trial.