McFadden v. A. B. Richards Medicine Co.

Hart, J., (after stating the facts). The first assignment of error is that the court erred in one of its instructions to the jury, which is specifically referred to in the defendant’s motion for a new trial. We do not deem it necessary to set out this instruction or to decide whether or not it was error to give it. No objection was made or exceptions saved to the action of the court in giving the instruction complained of. It is well settled in this State that exceptions to the action, of the trial court in giving or refusing instructions must be made during the trial and brought into the record by bill of exceptions. It is not sufficient to merely assign the giving or refusing of instructions as grounds for a motion for a new trial. DeQueen & Eastern Rd. Co. v. Pigue, 135 Ark. 499; and Martin v. Duke, 156 Art. 54. Another ground of the defendant’s motion for a new trial is for newly discovered evidence. The party asking a new trial for newly discovered evidence should not only state in his motion that he did not know of the existence of the testimony in time to produce it at the trial, but should also show facts from which it will appear that he could not have ascertained or obtained such evidence by reasonable diligence. McDonald v. Daniel, 103 Ark. 589; Huckaby v. Holland, 150 Ark. 85; and Caddo Central Oil & Refining Corp. v. Boatright, 159 Ark. 305. The newly discovered evidence is a carbon copy of the original order signed by the defendant, and it is claimed that, by comparison of it with the original order which was introduced in evidence, the original order had been changed by writing in the words ‘ freight allowed. ’ ’ The defendant knew that his failure to pay the freight was the'cause of the lawsuit. When the original order with the notation on it, “freight allowed,” was introduced in evidence, this should have put him on notice that these words had been added after he sent in the order, if such was the case. His failure to have a carbon copy at the trial was due to his own negligence in the matter. In this connection it may be noted that the trial was had in the town where the defendant’s place of business was situated. Hence, under the rule announced in the case above cited, the court did not err in refusing to grant a new trial for newly discovered evidence. No error is relied upon for a reversal of the judgment, and it will be affirmed.