GEORGE BARTLETT, Appellant, v. A. P. HOGDEN, Respondent, 3 Cal. 55

Wells, Justice, delivered the opinion of the court, with which Heydenfeldt, Justice, concurred. The grounds on which the motion for a new trial in the court below was based, were, newly discovered evidence, excessive damages, and insufficiency of the evidence to justify the verdict.

An application for a new trial on the ground of newly discovered evidence, should show affirmatively that the evidence is new, material, and not cumulative, that the applicant has been diligent in preparing his case for trial, that the new evidence was discovered after the trial, and will be important, and tend to prove facts which'were not directly at issue on the trial, or were not then known or investigated by proof. Daniel v. Daniel, J. J. Marshall’s Reports, 52. See Graham on New Trial.

In the case before us, an affidavit was produced, on the part of defendant, and sworn to by him, in which he states, “ that since the trial of said cause at the August Term of the District Court, he has discovered evidence to show a sale of the property sued for, from Hogden (the plaintiff) to Shephard, from whom defendant purchased it, and the nature of the evidence is shown by an affidavit of A. L. Merriam, who states that Hogden admitted to him, in the latter part of 1850, or beginning of 1851, that he had sold the property sued for in said suit to one D. M. Shephard.

The defendant further shows, by his affidavit, that although he had frequently conversed with said Merriam about transactions between Hogden and Shephard, yet said Merriam had never spoken of Hogden’s admissions in regard to the property referred to.

It appears, also, that Merriam was examined as a witness on the part of the defendant on the trial; thus showing that the defendant had full opportunity, with the exercise of due diligence, both from frequent conversations with the witness upon the subject-matter before the trial, and through his examination upon the stand at the trial, to have ascertained all that the witness knew upon the subject.

It was a material fact to show on the application for a new trial, that Merriam had never informed the defendant before the trial, of the admissions of the plaintiff; and the defendant ought not to have relied on his own single and unsupported statement, but should have procured the affidavit of Merriam to explain how it was, that he concealed a fact so material to the point at issue, until after the trial.

Can it be said that the testimony of Merriam as to the admissions of plaintiff would not be cumulative, or. that it would tend to prove facts which were not directly in issue on the trial, or were not then known or investigated by proof? We think not. By an examination of the depositions in writing which were used upon the trial, and also used upon the motion in the court below, we discover that a witness named Springer was examined on the part of the defendant upon the point as to the alleged sale and delivery to Shephard.

It then appears that this fact was in issue on the trial, and the same was investigated by proof. Proof was also adduced upon the trial, as to the amount of damages; this being simply a question of fact, it was entirely within the province of the jury, and this court cannot undertake to examine into the proofs, or to declare that there was an insufficiency of evidence to justify the verdict.

Much is necessarily left to the discretion of the judges in courts below in granting and refusing new trials; and it is a well-settled principle that appellate courts will not disturb the order of an inferior court on such motions, made in the exercise of that discretion, unless manifest error shall appear. No such error appearing in this case, the judgment must be affirmed. Ordered accordingly.