Hemmer v. Burger

SherwiN, C. J. Tbe questions tried in tbe original case were whether tbe division fence was built ten- or more years before suit was commenced, and whether it was recognized by tbe owners of tbe land as tbe true boundary between them, the real contest being over tbe time when tbe fence was built. Tbe plaintiff’s evidence located a certain wood-house as being on the boundary line that she claims to have 615 been so acquiesced in, and a fence extending west from tbe northwest comer of tbe woodbouse as tbe fence that bad been built more than ten years before. Tbe newly discovered evidence on wbicb a new trial was asked related to tbe location of tbe same woodbouse and fence, and -to tbe time when they were built, and to nothing else; and under tbe well-settled rule it was merely cumulative evidence, for wbicb a new trial will not be granted. Donnelly v. Burkett, 75 Iowa, 613; State v. Oeder, 80 Iowa, 72; Stineman v. Beath, 36 Iowa, 73; Boggess v. Read, 83 Iowa, 548; Bank v. Ins. Co., 40 Iowa, 572; Morrow v. Ry. Co., 61 Iowa, 490. It is not always an easy matter to determine whether evidence is merely cumulative or otherwise, but a careful examination of tbe plaintiff’s original evidence and tbe newly discovered evidence leaves no doubt in oiir minds as to tbe character of tbe latter. Tbe appellee also urges that reasonable diligence was not shown, but we do not pass on this point, preferring to place our decision on tbe ground stated. We think there was no abuse of discretion in refusing a new trial, and tbe order is affirmed.