Breeden v. Roberts

6 Ky. Op. 83, 1872 Ky. LEXIS 431

• Court: Court of Appeals of Kentucky
• Decided: December 10, 1872
• Status: Published

Opinion

Opinion by

Judge Pryor:

The amendment filed cures, the defect in the original petition. This amendment alleges that the evidence disclosed by the affidavit of Northcut was discovered after the adjournment of the term at which the trial was had.

The testimony however in the present case shows that North-cut gave to one of the plaintiffs in the original suit, who was at the time engaged in prosecuting it, notice of what he knew in regard to the controversy, and this knowledge imparted to him by North-cut, was embodied in an affidavit filed during the term at which the judgment was rendered in order toi sustain the motion for a new trial.' This affidavit seems to have been lost, and- in fact the discovery of testimony after the trial was not relied on, but withdrawn from the several grounds assigned. If, however, it appeared that the information derived from. Northcut was obtained after the adjournment of Court, all he says in reference to the case is, that the appellant told him that he had borrowed money of the appellees and paid it back. This character of testamony would not authorize a new trial upon such an issue. The statement of North-cut is as favorable to the appellant as the appellees, and certainly different from the contents of the affidavit of the appellees on the subject. Nor does the statement of Finnell affect the merits of the controversy. The judgment awarding a new trial is reversed and cause remanded with directions to dismiss appellees petition.

Fisks, for appellant.

-, for appellees.