Opinion
No. 12,338.
Filed July 1, 1925.
1. APPEAL. — Any evidence will sustain a finding on appeal. — Where there was any evidence to sustain the finding of the court, the judgment will not be reversed for want of sufficient evidence. p. 371.
2. NEW TRIAL. — Motion for because of newly-discovered evidence must show diligence in discovering new evidence. — A motion for a new trial for newly-discovered evidence is properly overruled when the motion fails to show diligence in discovering the new evidence. p. 371.
3. NEW TRIAL. — Newly-discovered evidence which is merely cumulative does not warrant a new trial. — A motion for a new trial because of newly-discovered evidence which is merely cumulative is properly overruled. p. 371.
From Scott Circuit Court; Frank E. Little, Special Judge.
Action by George W. Seaver against Arthur F. Seaver. From a judgment for plaintiff, the defendant appeals. Affirmed. By the court in banc.
George V. Cain and B.M. Owens, for appellant.
Lawson N. Mace and Oscar B. Abel, for appellee.
Action by appellee against appellant wherein appellee seeks to recover from appellant a balance of $1,200 of the purchase money of a certain tract of real estate. It is appellant's contention, as appears by his affirmative answer, that said balance of $1,200 of the purchase price of such real estate was, by agreement of appellant and appellee, to be paid by him in the discharge of a certain mortgage upon another tract of real estate owned by the appellee instead of paying the same in cash.
There was a trial by the court and a judgment in favor of the appellee. The only error assigned is the action of the court in overruling appellant's motion for a new trial, the reasons properly assigned being that the decision of the court is not sustained by sufficient evidence, that it is contrary to law, and that appellant has newly-discovered evidence in the event of another trial.
While the evidence was conflicting, there was evidence that appellant agreed to pay the said sum of $1,200 in cash and this was sufficient to sustain the finding and judgment of the 1. court in favor of the appellee.
As to the newly-discovered evidence, appellant wholly fails to show due diligence in discovering the new evidence, and 2, 3. such evidence was merely cumulative.
Judgment affirmed.