Bonar v. Arnold

5 Ky. Op. 227, 1871 Ky. LEXIS 339

• Court: Court of Appeals of Kentucky
• Decided: September 20, 1871
• Status: Published

Opinion

Opinion by

Judge Lindsay:

The petition for a 'rehearing in this case is based upon the alleged ground of newly discovered 'testimony tending to show that Ambler, the agent of appellee, had the authority to receive in payment of the notes in his hands for collection stock, produce, etc.

It does not appear that appellant -had made any effort whatever, prior to the rendition of the judgment sought to be vacated, to ascertain or to prove the nature and extent of Ambler’s authority. Nor that the information he subsequently acquired upon this subject was volunteered to him by the witnesses, but rather sought them out after defeat, and then for the first time enquired as to what he could prove by them. No explanation is given as to why he hunted these witnesses up after judgment, and failed to do so before. To^ grant him a new trial under such circumstances would be to encourage negligence upon the part of suitors, in effect to authorize them to speculate upon the action of the court, with an implied assurance that they would be allowed to prepare their case for 'trial after judgment in case the result was unfavorable. In addition to this, the new testimony is calculated to contradict the evidence produced by appellant upon the first trial.

He then proved that Ambler in payment for the 'hogs sold him was to lift the note due to appellee. He now seeks to' establish that he received the 'hogs in payment of the note, and that, under his authority as agent, he had the right to do so.

Ireland, for appellant. Foote, for appellee.

The most liberal practice will not authorize a new trial to enable the applicant to contradict what he proved upon the first trials. We are of opinion that his petition was properly ■ dismissed.

Judgment affirmed.