Vanderburg v. Campbell

64 Miss. 89

• Court: Mississippi Supreme Court
• Decided: October 15, 1886
• Status: Published

Opinion

ARNOLD, J.,

delivered the opinion of the court.

No valid reason is shown for setting aside the verdict on the first trial. The affidavit for the new trial, in so far as it relates to the newly discovered evidence in reference to the location of the road, is defective and insufficient, because it fails to show that the affiant had made any effort to discover the testimony which he alleged existed on that subject, or that it could not have been discovered and obtained by reasonable diligence at the first trial. Watson v. Dickens, 12 S. & M. 608 ; Cooper v. The State, 53 Miss. 393.

With no error of law, and with numerous witnesses on each side testifying directly to the only disputed fact in the case, the issue had been determined by the jury in favor of appellant, and she should not have been deprived of the fruits of the contest except for some cause recognized by law as sufficient for that purpose.

The discretion exercised in granting new trials is governed by legal rules rather than by the mere will or pleasure of the judge. Otherwise, the delays and uncertainties of litigation might be increased to an intolerable degree. 2 Graham and Waterman on New Trials 46, 47.

That appellee, the defendant below, was able to find other witnesses, who on a new trial would support the issue on his part, or who would contradict or impeach the credibility of a single witness of his adversary, was not more than could be done by almost every defeated litigant.

It has been often decided in this State and elsewhere that newly discovered testimony to impeach the character of a witness, or which is merely cumulative, does not afford ground for a new trial. Moone v. Chicago, etc., R. R. Co., 59 Miss. 243; Cooper v. The State, 53 Ib. 393.

The judgment is reversed, the last verdict set aside, the first verdict restored, and judgment entered thereon here, for appellant.