Toledo, Wabash & Western Railway Co. v. Seitz

Mr. Chief Justice Breese delivered the opinion of the Court: We are of opinion the circuit court made a proper disposition of the motion for a new trial on the ground of newly discovered evidence. The affidavits of the witnesses, Wheeler and White, do not amount to much. Admit that Wheeler would testify that Seitz had traded the injured mule to White, and had received for him and another mule, a horse and $50. That testimony does not tend to prove that the mule was not injured to the extent of $100. Nor does the testimony of White make such a case for the defendants as would compel a jury to find for them. Seitz was examined as a witness on the trial, and defendants’ counsel did not cross-examine him. The slightest cross-examination would have brought out all the facts. It is too late, under the circumstances, to ask or expect a new trial. Taking all the evidence in the record, together with Wheeler’s and White’s added, the weight of evidence is still in favor of the verdict. The evidence of the latter would be merely cumulative, not conclusive. The judgment must be affirmed. Judgment affirmed.