Dixon v. Cheatham's Adm'r

6 Ky. Op. 728

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1873
• Status: Published

Opinion

By Subsec. 7 of Sec. 369 of the Civil Code appellant might have been entitled to- a new trial if he had alleged and shown that he had newly discovered evidence material to him- which he could not with reasonable diligence have discovered and produced at the trial.

But he fails to allege in his petition that he made any effort to discover any evidence of the payment of the money and from the statements therein made it is manifest that he accidentally and when he was not looking for said paper, found it, and could have found it before the trial if he had put himself to the trouble to look for it. The demurrer was properly sustained.

And besides such a suit as this can not be maintained unless it be brought within three years after the final judgment sought to be set aside. Sec. 373. The final judgment was rendered and the money paid more than three years before this action was instituted.

The judgment must be affirmed.