Stegar's Admr. v. Perkins

5 Ky. Op. 736, 1872 Ky. LEXIS 352

• Court: Court of Appeals of Kentucky
• Decided: June 21, 1872
• Status: Published

Opinion

Opinion by

Judge Peters:

The evidence alleged to have been discovered since the trial at law applies directly to the question in issue on that trial, and it does not appear that appellant used reasonable diligence in his efforts to procure the evidence which he professes recently to have discovered. The witness whose evidence he now professes to have discovered is a brother of Jacob Froman, who, it is alleged, was the debtor of appellee, resided in the same county where the alleged debt was created and it is not shown that any effort was made to discover or to procure the evidence before the trial of the original action.

Nor is the evidence discovered of that certain and unerring character that would on a second trial inevitably produce a different result; and the chancellor will never interfere with a judgment at law unless the evidence discovered would be such as to change the verdict. Daniel v. Daniel, 2 J. J. Mar. 52. In this case, it is said, we know of no case in which a new trial has been granted or sanctioned by this court on the isolated ground of discovery of witnesses to a fact involved in the issue at law and tried.

Owsley & Brudett, for appellants. Dunlap, for appellee.

Wherefore the judgment is affirmed.