Bullock v. . Williams

195 S.E. 791, 213 N.C. 320, 1938 N.C. LEXIS 76

Opinion

Per Curiam.

Tbe prerequisites to tbe granting of motion for new trial for newly discovered evidence are fully set forth in Johnson v. R. R., 163 N. C., 431, 79 S. E., 690; also in Brown v. Hillsboro, 185 N. C., 368, 117 S. E., 41; Brown v. Sheets, 197 N. C., 268, 148 S. E., 233; S. v. Casey, 201 N. C., 620, 161 S. E., 81; Love v. Queen City Lines, 206 N. C., 575, 174 S. E., 514; Furniture Co. v. Cole, 207 N. C., 847, 178 S. E., 579.

An examination of tbe affidavits offered by defendant in support of tbe motion fails to show compliance with tbe tests required. When compared with tbe evidence introduced at tbe trial of tbe case in Superior Court, it is observed that tbe so-called newly discovered evidence is merely cumulative and tends only to contradict former witnesses.

“Although tbe discretionary ruling of tbe trial judge upon an application for new trial for newly discovered evidence is not reviewable on appeal, where tbe applicant fails to make out a showing of newly discovered evidence sufficient in law to invoke tbe discretionary ruling tbe granting of tbe application will be held for error,” beadnote in Crane v. Carswell, 204 N. C., 571, 169 S. E., 160, wbicb is applicable here.

Tbe granting of a new trial below is

Error.