Welch v. Nasboe

8 Tex. 189

• Court: Texas Supreme Court
• Decided: July 1, 1852
• Status: Published

Opinion

Lipscomb, J.

Tlie only question presented in this case is, does the affidavit furnish sufficient ground for a new trial. It is newly-discovered evidence since the trial, and that evidence is the acknowledgment of the opposite party, made after the rendition of tlie verdict.

'Pile rule laid down by tills court in Madden v. Shapard, 3 Tex. R., and in Edrington v. Kiger, 4 Tex. R., is, “ that to entitle a party to a new trial on the ground of newly-discovered evidence it is incumbent on liim to satisfy tlie court that the evidence has come to his knowledge since the trial; that it was not owing to a want of due diligence that it was not discovered sooner, and that it would probably produce ;i different result, upon a new trial.”

From the nature of the evidence disclosed in tlie affidavit of Johnson it is iinpos-iblo that it could he known by the party before tlie trial. lVe therefore believe that tlie application fora new trial was within the rule above noticed and thaf a. new trial ought to have been granted.

The judgment is reversed and remanded for a new trial.

Reversed and remanded.