Wright v. Bennett, Miller & Knox , 1 White & W. 608 ( 1881 )

Opinion by

Walker, R. S., P. J.

§ 1078. New trial; motion for, on ground of newly discovered evidence. Applications for new trial on the ground of newly discovered evidence will be scrutinized with much strictness. They are addressed much to the discretion of the court, and where the court has refused such an application, the appellate court will not reverse, unless it shall appear that the court has not exercised its discretion according to the established rules of law and the principles of adjudged cases. [Mitchell v. Bass, 26 Tex. 372.] If the evidence has been discovered since the trial under circumstances which would excuse tlie party for not having offered it on the trial, his application for & rehearing- would be entertained, and the court would exercise a sound discretion, according to all the facts and circumstances, in granting- or refusing it. To state in the application that the applicant “ could not possibly know of or obtain the testimony,” cannot be accepted as •a substitute for that full and satisfactory showing of the circumstances and reasons which thus rendered it impossible to obtain the testimony at the trial, which is of the very essence of this ground for relief. The facts must be stated from which the court, rather than the party, may exercise its judgment to determine whether the diligence required to obtain the testimony was employed; and if none was used, then the facts and circumstances which existed, rendering the attempt unnecessary.

June 22, 1881.

Affirmed.