Trials C.P. — Motion for new trial — After-discovered testimony — Corroborative evidence — Discretion of court — Abuse.
It is not an abuse of discretion for a court to refuse a motion for a new trial based on alleged after-discovered evidence where (1) there is no proof that the testimony could not have been procured before the trial was had if proper effort had been made, and (2) where an examination of the depositions filed in support of the motion discloses that the evidence would be merely cumulative and corroborative.
Submitted April 18, 1934.
PER CURIAM, July 13, 1934:
The plaintiff was insured in the defendant company and, his barn having been destroyed by fire, brought this suit to recoup his loss. The trial narrowed down to the defense whether the plaintiff at the time of the fire was keeping an automobile in his barn. Some witnesses testified they saw an automobile in the building and others, more in number, flatly contradicted them. The jury could readily conclude that the defendant failed to establish its defense.
The defendant asks for a new trial and has submitted some affidavits setting out to what certain witnesses, if called, would testify. There is no proof however that these witnesses were not obtainable before the trial and an examination of their depositions shows that they would merely afford additional proof in the nature of a corroboration of the witnesses who had been called by the defendant. Nothing would be gained by granting a new trial in order to afford the defendant a chance to which it is not entitled in his efforts to defeat plaintiff's action. There is nothing whatsoever that would appeal to the conscience of the court to have the matter again passed upon by another jury.
The judgment is affirmed.