Freeman v. Gragg

73 Ala. 199

Opinion

STONE, J.

— Without referring to others, there are two conclusive reasons why the prayer of the petitioner in this cause should not have been granted. First, a failure to show the testimony was not discovered until after the adjournment of the term of the court at which the trial was had. This averment was necessary, as an excuse for not applying for a new trial. Second, a failure to show in what the. testimony consisted, and that it was not merely cumulative of a fact or facts, of which some proof was made on the former trial. The rule on these points is strict. — Ex parte Walker, 54 Ala. 577; Blood v. Beadle, 65 Ala. 103; 2 Brick. Dig. 280; Bowden v. Perdue, 59 Ala. 409.

Affirmed.