Orand, Paramore & Co. v. Walker

*McCAY, J. We see no error in the Court in his judgment overruling this motion for a new trial. 1. The newly discovered evidence is cumulative, and by section 3665 of the Revised Code is therefore too late. The distinct issue made on the trial, was the soundness or unsoundness of the horse, at the time of the sale, and there was evidence on both sides upon that question. The blacksmith and the defendant both testified that she was slightly lame very soon after the sale, and,both stated the suspicious fact, that the hoof of the horse had evidently been treated with pitch and India rubber, as if something was the matter. Wolfork Walker testified that this lameness continued getting worse for a year, when he sold her. Now the only effect of this new witness’ testimony is to contradict Walker. That the horse was hurt after Chaoman got her has nothing to do with the question in dispute. The real point of the new evidence is that the horse was not lame whilst the defendant had her, and that matter was the very issue tried, The evidence, if used on the trial, need not necessarily have changed the verdict. It is utterly inconsistent with the testimony of both Walker and the blacksmith, and the jury might, and so might a new jury, believe them rather than the discovered witness. A new trial will not be granted unless the evidence discovered would probably, at least, change the verdict. Judgment affirmed.