Day, J.
1. New trial: newly discovered evidence. It is claimed by tbe appellee that tbe proposed evidence is immaterial, in that if it bad been produced upon tbe trial tbe result, would have been tbe same, It is not verv clear to us that tbe evidence, as it v . stood upon the former trial, preponderates m. favor of tbe plaintiff. Indeed some of tbe members of this court think tbe preponderance is in favor of tbe defendant, and would have been better content if, upon that evidence, tbe judgment bad been for tbe defendant.- Evidence of tbe statements of the plaintiff, claiming of defendant a much less sum than be recovered, would be entitled to great weight, and, in connection with tbe other evidence produced, would clearly have justified, if it did not require, a judgment for tbe defendant. We cannot, therefore, bold that tbe proposed testimony is immaterial.
II. It is further claimed that tbe proposed testimony is merely cumulative. We have examined with much care tbe testimony offered upon tbe former trial, and we feel satisfied that tbe claim that tbe testimony proposed is simply cumulative is not supported by tbe record.
2.-: petition for: pleading. III. It is claimed that it does not appear that due diligence was exercised to discover this evidence before tbe trial. It must not be overlooked that tbe questions presented arise upon demurrer to tbe petition. Tbe application for new trial is made under sections 3154-5 of the Codo, [402]*402The petition alleges that defendant could not, with reasonable diligence, have discovered the testimony before the trial. It complies with the requirements of section 3155. What was done by defendant to procure evidence, or what facts existed showing that the exercise of diligence could not have procured the testimony, is a matter of evidence. In affidavits in support of a motion for new trial these should be set out, because the affidavits supply the evidence upon which the court acts. But a petition for a new trial, which must be supported by evidence in the ordinary way, is not vulnerable to a demurrer which alleges, in the language of the statute, that the grounds for new trial could not, with reasonable diligence, have been discovered before.
The demurrer, we think, should have been overruled.
Reversed.
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