Sherwin, J.
2. same: preror-Moreover, the appellee concedes that the transcript, was incompetent, but contends that no prejudice resulted to the defendant from its use for impeaching purposes. But the testimony read therefrom was entirely different from and contradictory of the testimony givén by the defendant on the same subject on the-trial, and, if considered by the jury, as we must presume-it was,could not have been otherwise than prejudicial to the-defendant. This clearly appears from the record before us, and on account thereof the judgment must be reversed.
3- new trial, The petition for a new trial in the court below was-based upon some fifteen different grounds, most of which become immaterial in view of a retrial of the case, except as-they may appear so for the purpose of deter[604]*604mining the question of costs. A careful examination of the very complicated and imperfect record and argument presented on this branch of the case shows quite conclusively that there was no error in denying a new trial on the petition. The allegation of fraud in procuring the original judgment was not sustained by the evidence, and the newly discovered evidence alleged was merely cumulative, and hence presented no ground for a new trial. All of the other grounds relied upon were known to the defendant before the trial of the main case, and did not constitute the statutory basis for a new trial upon petition under section 4092 of the Code.
The order refusing a new trial upon the petition is therefore affirmed at the costs of the appellant, and in the main case the judgment is reversed.
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