Gilbreath v. Bain

GARDNER, J. The only question presented and argued by counsel for appellant on this appeal relates to the action of the trial court in overruling defendant’s motion for a new trial, based upon the ground of newly discovered evidence. One of the prerequisites to a favorable consideration of such motion upon this ground is that it be made to appear -due diligence had been unavailingly used by the movant prior to the trial. McLeod v. Shelly Mfg. Co., 108 Ala. 81, 19 So. 326; Fries v. Acme White Lead, etc., Wks., 201 Ala. 613, 79 So. 45; Thomas v. Johnson, 208 Ala. 701, 94 So. 922. There is no pretense of surprise, accident, fraud, or mistake, but only newly discovered proof, and upon this question, after due consideration of the record, we are rather impressed that the defendant was “stimulated by the verdict to a point of effort which he ought to have reached, but did not, before the trial.” De Sota Coal, etc., Co. v. Hill, 188 Ala. 667, 65 So. 988. Pretermitting a consideration of other suggested reasons leading to an affirmance of the lower court’s ruling, we are persuaded that the denial of the motion may well rest upon a failure on defendant’s part to show *101 an exercise of due diligence as to the newly discovered evidence. Let the judgment be affirmed. Affirmed. ANDERSON, O. J., and SAXRE and MILL: ER, JJ., concur.