Gregg v. Bankhead

22 Tex. 245

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheeler, Ch. J.

Tbe petition and accompanying affidavits, manifestly disclosed no sufficient ground for awarding a new trial. Tbe alleged ground is newly discovered evidence; but tbe affidavits of tbe witnesses sbow plainly, that tbe proposed evidence was not newly discovered. Tbe facts, to wbicb it was proposed tbe witness should testify, upon another trial, bad transpired between tbe witness and tbe party. It consequently must have been known to him, that tbe witness was cognizant of what did transpire, on tbe occasion of wbicb be speaks. Moreover, tbe affidavit of tbe attorney of tbe party shows, that be knew of tbe materiality of tbe witness. He, then, should have obtained bis testimony; or, if it could not be bad at that term, he should have placed himself in a situation to have tbe trial postponed, until be could procure it. The most favorable view that can be taken of tbe petitioner’s case, is, that be may have forgotten what transpired, as deposed to by the witness, or tbe presence of tbe witness ; but this would not entitle him to a new trial. A want of recollection of a fact, wbicb, by due attention, might have been remembered, is not such newly discovered evidence as will procure a new trial. (1 Grab. & Wat. on New Trials, p. 447.) Tbe application shows no diligence, but tbe contrary; and must have been deemed manifestly insufficient, if made during tbe term. Much more must it be so held, when tbe party has delayed making it, without showing any sufficient legal excuse, until after be bad prosecuted bis appeal from tbe judgment, to a final judgment in this court. He appears to have availed himself of all tbe delays known to tbe law. Tbe case is not distinguishable, in principle, from tbe case of Cook v. Garza, 13 Tex. Rep. 431.

Tbe judgment was rightly rendered, upon tbe motion to dissolve tbe injunction, and dismiss tbe petition against the principal and sureties in the injunction bond. Judgment affirmed.

Judgment affirmed.