RosenberRY, J.
On behalf of the plaintiff the following errors are assigned:
1. The court erred in holding that there had been a failure by the plaintiff to exercise due diligence to discover the evidence forming the basis of . the present petition.
2. The court erred in holding that the new evidence is not such as would probably have changed the conclusions arrived at by the supreme court had such evidence been before it.
3. The court erred in denying the plaintiff’s motion.
On behalf of the defendants it is urged that, the judgment of the circuit court having been affirmed by this court on appeal, it became in effect the judgment of this court and the circuit court therefore had no power to- vacate the judg-[367]*367merit so affirmed and award a new trial upon the ground of ' newly-discovered evidence or upo'n any other ground, without leave from this court first granted. ,
Plaintiff’s motion in this case is based upon sec. 2879, Stats., which provides that a motion for a new trial founded in whole or in part upon newly-discovered evidence may be made at any time within one year from the verdict or findings. Other provisions • of the section relate to the affidavits, papers, and matters upon which the motion may be based.
Sec. 2832, Stats., provides that the court may in its discretion, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, through his mistake, inadvertence, surprise, or excusable neglect.
In Ean v. C., M. & St. P. R. Co. 101 Wis. 166, 76 N. W. 329, a judgment of the circuit court had been affirmed by this court on appeal, and within one year from the date of its entry the trial court set it aside under the provisions of sec. 2832. It was there held, referring to the cases of Patten P. Co. v. Green Bay & M. C. Co. 93 Wis. 283, 66 N. W. 601, 67 N. W. 432; State ex rel. Turner v. Circuit Court, 71 Wis. 595, 38 N. W. 192; and Whitney v. Traynor, 76 Wis. 628, 45 N. W. 530, that a judgment entered in accordance with the mandate of the supreme court is in legal effect the judgment of the supreme court and that it is as effectually res adjudicata as a case where the judgment is affirmed. The Ean Case was followed in Crowns v. Forest L. Co. 100 Wis. 554, 76 N. W. 613.
In Hansen v. Milwaukee C. & G. Co. 157 Wis. 514, 147 N. W. 1001, there was a judgment of nonsuit in the circuit court, which judgment was affirmed by this court. While the record in the case was still in this court the appellant moved for an amendment to the mandate which would give to the trial court power to entertain and decide an applica[368]*368tion for a new trial of the case based upon affidavits purporting to show newly-discovered evidence. The court said:
“Notwithstanding the mandate of affirmance, we do not understand that the affirmance affects in any way the power of the trial court in the matter.”
In the case of Dibbert v. Metropolitan Inv. Co. 158 Wis. 69, 147 N. W. 3, the judgment of the circuit court was affirmed by- the supreme court. The verdict was rendered June 25, 1913! The mandate affirming the judgment of the circuit court was dated October 6, 1914. Before the expiration of one year from the date of the verdict the defendant and appellant made a motion for a new trial in the circuit court on the ground of newly-discovered’ evidence. After the mandate affirming the judgment was filed, a motion was made asking this court to- modify its mandate so as to order a new trial, or, in the alternative, to so modify it that the circuit court might do so if satisfied that the motion for a new trial should be granted. The court said:
“The merits of the motion should be passed upon by the lower court, and the mandate is modified so as to- affirm the judgment without prejudice to the right of the defendant to have its motion for a new trial determined by the circuit court.”
It is argued that there is no logical difference between a motion [o- relieve a party from a judgment on account of “mistake, surprise, or excusable neglect” and a motion for a new trial upon newly-discovered evidence, and that the decisions, therefore, construing the two sections are inconsistent, and that logically the conclusion reached in the Ean Case should be adhered to in applying both statutes. We think there is a fundamental distinction between secs. 2832 and 2879, Stats. While in certain instances the exercise of the discretion conferred upon the circuit court by sec. 2832 may result in relief against a judgment, it is a matter of discretion with the trial court, whereas under the provisions [369]*369of sec. 2879 it is the right of a party to have a motion for a new trial founded upon newly-discovered evidence determined by the court upon its merits. ■ Under sec. 2879 the determination relates to a substantive right, whereas under sec. 2832 the motion is addressed to the sound discretion of the court and is’ an appeal to the favor of the court. The motion in the case at bar was based entirely upon the claim 'of newly-discovered evidence and it is considered that the trial court correctly entertained the same and had power to grant or deny the motion.
A new trial will not be granted on the ground of newly-discovered evidence unless the party moving therefor satisfies the court, first, that such evidence came to his knowledge after the trial; second, that he was not negligent in seeking to discover it; third, that it is material to the issue; fourth, that it is not merely cumulative to testimony introduced on the trial; and fifth, that it is reasonably probable that a different result would be reached upon another trial. Birdsall v. Fraenzel, 154 Wis. 48, 142 N. W. 274, and cases cited. Nor will a determination of the court below granting or refusing a new trial be disturbed unless it is manifest that the discretion of the court has been improperly exercised. Wilson v. Plank, 41 Wis. 94.
These rules apply to a motion for new trial upon the ground of newly-discovered evidence made after judgment. Milwaukee W. Mills v. Winsor, 157 Wis. 538, 147 N. W. 1068; Defiance M. Works v. Gill, 170 Wis. 477, 175 N. W. 940.
Even in a criminal case it is said:
“The presumption is always that by due diligence the parties to the action can discover and produce relevant and material evidence. It is for this reason that the motion for the new trial on the ground of newly-discovered evidence is received with great caution and not entertained favorably.” Musso v. State, 160 Wis. 161, 151 N. W. 327.
Upon the original trial the trial court was of the opinion [370]*370that the prayer of the complaint should be denied because it would be unconscionable and inequitable to decree specific performance of the contract of January 14, 1911, for the reasons stated (172 Wis. 278, at p. 291, 178 N. W. 855), but held that the invention referred to was one covered by the contract between the parties, and upoh appeal to this court it was held that the contract was not unconscionable and inequitable but that the contract did not cover the invention in question.
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RosenberRY, J.
On behalf of the plaintiff the following errors are assigned:
1. The court erred in holding that there had been a failure by the plaintiff to exercise due diligence to discover the evidence forming the basis of . the present petition.
2. The court erred in holding that the new evidence is not such as would probably have changed the conclusions arrived at by the supreme court had such evidence been before it.
3. The court erred in denying the plaintiff’s motion.
On behalf of the defendants it is urged that, the judgment of the circuit court having been affirmed by this court on appeal, it became in effect the judgment of this court and the circuit court therefore had no power to- vacate the judg-[367]*367merit so affirmed and award a new trial upon the ground of ' newly-discovered evidence or upo'n any other ground, without leave from this court first granted. ,
Plaintiff’s motion in this case is based upon sec. 2879, Stats., which provides that a motion for a new trial founded in whole or in part upon newly-discovered evidence may be made at any time within one year from the verdict or findings. Other provisions • of the section relate to the affidavits, papers, and matters upon which the motion may be based.
Sec. 2832, Stats., provides that the court may in its discretion, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, through his mistake, inadvertence, surprise, or excusable neglect.
In Ean v. C., M. & St. P. R. Co. 101 Wis. 166, 76 N. W. 329, a judgment of the circuit court had been affirmed by this court on appeal, and within one year from the date of its entry the trial court set it aside under the provisions of sec. 2832. It was there held, referring to the cases of Patten P. Co. v. Green Bay & M. C. Co. 93 Wis. 283, 66 N. W. 601, 67 N. W. 432; State ex rel. Turner v. Circuit Court, 71 Wis. 595, 38 N. W. 192; and Whitney v. Traynor, 76 Wis. 628, 45 N. W. 530, that a judgment entered in accordance with the mandate of the supreme court is in legal effect the judgment of the supreme court and that it is as effectually res adjudicata as a case where the judgment is affirmed. The Ean Case was followed in Crowns v. Forest L. Co. 100 Wis. 554, 76 N. W. 613.
In Hansen v. Milwaukee C. & G. Co. 157 Wis. 514, 147 N. W. 1001, there was a judgment of nonsuit in the circuit court, which judgment was affirmed by this court. While the record in the case was still in this court the appellant moved for an amendment to the mandate which would give to the trial court power to entertain and decide an applica[368]*368tion for a new trial of the case based upon affidavits purporting to show newly-discovered evidence. The court said:
“Notwithstanding the mandate of affirmance, we do not understand that the affirmance affects in any way the power of the trial court in the matter.”
In the case of Dibbert v. Metropolitan Inv. Co. 158 Wis. 69, 147 N. W. 3, the judgment of the circuit court was affirmed by- the supreme court. The verdict was rendered June 25, 1913! The mandate affirming the judgment of the circuit court was dated October 6, 1914. Before the expiration of one year from the date of the verdict the defendant and appellant made a motion for a new trial in the circuit court on the ground of newly-discovered’ evidence. After the mandate affirming the judgment was filed, a motion was made asking this court to- modify its mandate so as to order a new trial, or, in the alternative, to so modify it that the circuit court might do so if satisfied that the motion for a new trial should be granted. The court said:
“The merits of the motion should be passed upon by the lower court, and the mandate is modified so as to- affirm the judgment without prejudice to the right of the defendant to have its motion for a new trial determined by the circuit court.”
It is argued that there is no logical difference between a motion [o- relieve a party from a judgment on account of “mistake, surprise, or excusable neglect” and a motion for a new trial upon newly-discovered evidence, and that the decisions, therefore, construing the two sections are inconsistent, and that logically the conclusion reached in the Ean Case should be adhered to in applying both statutes. We think there is a fundamental distinction between secs. 2832 and 2879, Stats. While in certain instances the exercise of the discretion conferred upon the circuit court by sec. 2832 may result in relief against a judgment, it is a matter of discretion with the trial court, whereas under the provisions [369]*369of sec. 2879 it is the right of a party to have a motion for a new trial founded upon newly-discovered evidence determined by the court upon its merits. ■ Under sec. 2879 the determination relates to a substantive right, whereas under sec. 2832 the motion is addressed to the sound discretion of the court and is’ an appeal to the favor of the court. The motion in the case at bar was based entirely upon the claim 'of newly-discovered evidence and it is considered that the trial court correctly entertained the same and had power to grant or deny the motion.
A new trial will not be granted on the ground of newly-discovered evidence unless the party moving therefor satisfies the court, first, that such evidence came to his knowledge after the trial; second, that he was not negligent in seeking to discover it; third, that it is material to the issue; fourth, that it is not merely cumulative to testimony introduced on the trial; and fifth, that it is reasonably probable that a different result would be reached upon another trial. Birdsall v. Fraenzel, 154 Wis. 48, 142 N. W. 274, and cases cited. Nor will a determination of the court below granting or refusing a new trial be disturbed unless it is manifest that the discretion of the court has been improperly exercised. Wilson v. Plank, 41 Wis. 94.
These rules apply to a motion for new trial upon the ground of newly-discovered evidence made after judgment. Milwaukee W. Mills v. Winsor, 157 Wis. 538, 147 N. W. 1068; Defiance M. Works v. Gill, 170 Wis. 477, 175 N. W. 940.
Even in a criminal case it is said:
“The presumption is always that by due diligence the parties to the action can discover and produce relevant and material evidence. It is for this reason that the motion for the new trial on the ground of newly-discovered evidence is received with great caution and not entertained favorably.” Musso v. State, 160 Wis. 161, 151 N. W. 327.
Upon the original trial the trial court was of the opinion [370]*370that the prayer of the complaint should be denied because it would be unconscionable and inequitable to decree specific performance of the contract of January 14, 1911, for the reasons stated (172 Wis. 278, at p. 291, 178 N. W. 855), but held that the invention referred to was one covered by the contract between the parties, and upoh appeal to this court it was held that the contract was not unconscionable and inequitable but that the contract did not cover the invention in question. In passing upon the ¿notion for a new trial the trial court was of the opinion, therefore, that unless the new evidence referred to constituted substantial grounds for believing that the result would be changed upon another trial, it was confined to consideration of whether or not the introduction of such new evidence would produce a change in the opinion of this court. We regard this, as an erroneous view of the law. The question is not whether the opinion of a particular judge or a particular court may be this or that. The question is whether or not, as a matter of law, the introduction of the newly-discovered evidence into the record affords substantial grounds for saying that, as a matter of law, a different result might be arrived at. The dismissal by the circuit court of consideration of that element of the case for the reason that it could not say that the result in this-court would be changed, was not a proper exercise of the authority conferred upon the court by the statute. Were that the only ground upon which the order denying the motion was based, we should feel obliged to reverse the determination of the trial court for the reason stated.
The trial court found that there was no refusal, evasion, or deception and no trick or artifice by the defendants or their counsel which misled or prevented the plaintiff from obtaining the file wrapper and contents referred to in the petition/ and that the failure to discover the alleged documentary evidence was due to such a lack of diligence as should defeat the plaintiff’s application. With this conclusion we agree. The case was very ably tried upon both [371]*371sides and each of the parties was represented by attorneys, who were skilled in all matters pertaining to the law of patents and practice before the patent office. If there was in the opinion of counsel a defect in the subpoena duces tecum referred to in the petition, due to the lack of experience in matters of that kind by the attorneys who drafted it, it must have passed under, the scrutiny of other counsel before the conclusion of the trial, and had counsel desired the production of the file wrapper and contents, counsel were well advised as to the steps necessary to procure the production of these documents upon the trial, and their failure to have them produced can be accounted for upon no other theory than that they were not considered to be of any probative force or at least of such slight weight as to make their production immaterial so far as the final result was concerned, and their failure to have them produced was therefore due to a lack of diligence in the legal sense. Wilson v. Plank, 41 Wis. 94.
While it is true that the plaintiff did not know the exact state of facts disclosed by the file wrapper and contents, it did know that there, if anywhere, was to be found the evidence relating to any separation of the various claims made by the defendant Cheshire in his application for a patent, yet it took no steps to require its production.
In the Ean Case, supra (101 Wis. 166, 76 N. W. 329), it was held that the fact that the judgment here was based upon grounds other than those upon which the court below placed its decision did not amount to a case of “surprise” which entitled the party to relief. So in this case, the fact that the decision of this court was based upon grounds that give the contents of the file wrapper a greater evidentiary value than they would have had if the case had been disposed of along the lines of the trial court’s decision, does not make it newly-discovered evidence nor excuse the plaintiff for its failure to require the production of the documents in question.
By the Court. — Order affirmed.