Opinion
No. 13,128.
Filed November 22, 1928.
1. NEW TRIAL — Newly-Discovered Evidence — Diligence in Procuring — Character of Newly-Discovered Evidence. — A party asking a new trial on the ground of newly-discovered evidence must, in his motion, show diligence in the matter of procuring testimony, and also that such newly-discovered evidence is not merely cumulative, contradictory or impeaching in character. p. 266.
2. APPEAL — Newly-Discovered Evidence — Presumption as to Court's Ruling. — When the evidence given at the trial is not before an appellate tribunal, it must presume in favor of the action of the trial judge in overruling a motion for a new trial on the ground of newly-discovered evidence, as he could know whether the newly-discovered evidence was merely cumulative, impeaching or contradictory, and the appellate tribunal could not. p. 266.
From Marion Superior Court (A38,674); James M. Leathers, Judge.
Action by the Tuxedo State Bank against William F. Keough. From a judgment for the defendant, the plaintiff appeals. Affirmed. By the court in banc.
Albert E. Schmollinger and Theophilus J. Moll, for appellant.
Delos A. Alig, for appellee.
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.