CHARLESTON.

#### Iva Edwards v. W. B. Keifer.

Submitted January 16, 1923.

Decided January 23, 1923.

1. New *Trial*— Movement *for New Trial on After Discovered Evidence Must Show Lack of Knowledge Before Trial and ' Diligence to Obtain Evidence.*

A litigant moving for new trial, on the ground of after discovered evidence, must clearly show by facts stated, his lack of knowledge of such evidence before trial, and diligence to obtain such knowledge and the evidence itself.

2. *Same*— New *Trial for After-Discovered Evidence Not Awarded Where Merely Cumulative.*

A new trial should not be awarded where the after discovered evidence is merely cumulative.

(McGinnis, Judge, absent).

Error to Circuit Court, Wetzel County.

Suit by Iva Edwards against W. B. Keifer. From an order sustaining a motion for new trial, plaintiff brings error.

*Reversed, and judgment for plaintiff.*

*Larrich & Lemon,*for plaintiff in error.

■ *Edwin 0. Keifer,*for defendant in error.

Litz, Judge:

The plaintiff complains of the action of the lower court in *651setting aside a verdict in her favor for $3076.66, and awarding the' defendant a new trial in an action brought by the plaintiff against the defendant by way of notice for judgment by motion.

The plaintiff, in her notice, accompanied by affidavit, servedi upon the defendant January 16th, 1922, sets up as the basis of her suit two notes payable to her, purporting to be signed by the defendant, as maker, one dated December 24th, 1920, for $800.00, payable six months after date; another for $3000.00 dated September 19th, 1921, payable one day after date.

After suit and before the trial on March 2d, 1922, the defendant paid the $800.00 note and filed his counter affidavit denying his signature to the $3000.00 note, a plea of *non est factum*and the general issue.

Upon the return of the jury’s verdict March 2d, 1922, in favor of the plaintiff, the defendant moved to set it aside on the ground that the same was contrary to the law 'and the evidence, and for other reasons to be assigned. April 15th, 1922, the defendant having assigned, among additional grounds, that of newly discovered evidence, and filed in support thereof the affidavits of himself and three others, the court set aside the verdict and awarded defendant a new trial.

The plaintiff testified upon the trial that the note in question had been given her by the defendant in his office in the town of Paden City, Wetzel County, West Virginia, between the hours of one o’clock and two o’clock p. m., September 19th, 1921, as evidence of three thousand dollars she at the time delivered to him as a loan. The defendant in his evidence denied that he had executed or given the note to the plaintiff; and further denied getting the money or that the plaintiff was in his office on that day. He also introduced the testimony of an expert, and several non-experts, on handwriting, tending to show that his signature to the note was not genuine.

As the verdict was reached upon a substantial conflict of evidence, without apparent error in. any ruling by the trial court, it should have stood unless a proper showing for new *652trial on tlie ground of newly discovered evidence Ras been made.

The affidavits of D. W. Watkins, C. C. McOlnng and Jess McCaskey, relied npon for the alleged after-discovered evidence, are to the effect that these affiants happened to be sitting around in view of defendant’s office from about one p. m. to two-thirty p. m. of September 19th, 1921; that they saw plaintiff, within this interim, a few feet from the defendant ’s office, but did not see her enter.

In addition to other requirements, the applicant for new trial on the ground of after discovered evidence, must clearly show from facts set forth, — not from mere conclusions stated, ■ — that he has used reasonable diligence to obtain such evidence before trial, and that the same is not merely cumulative. The rule as to the requisite measure of diligence on the part of the applicant is stated in the case of *Jacob*v. *Williams,*67 W. Va. 384, as follows: “An applicant for a new trial, on the ground of after-discovered evidence, must clearly show his lack of knowledge of such evidence before the trial and diligence to obtain such knowledge and the evidence itself. He must set forth the facts showing his lack of such knowledge, his efforts to. obtain it, and what prevented him from doing so, and leave it to the court to say from the facts stated whether he had such knowledge or used due diligence to obtain it.” As to the showing of diligence in that case it is said, “The affidavit respecting the testimony of Davis and Arms is equally unsatisfactory and inconclusive. The men resided in the.vicinity of defendant. He does not show that he ever interviewed them or made any effort to ascertain what they would testify to, nor that he was not aware of their knowledge of the case. He only says the testimony they propose to give was not made known to' him until after the trial, and that he used all diligence and every means within his power to procure the testimony of witnesses in respect to matters material to his defense. This is a mere conclusion. ’ ’

The defendant, in his affidavit in this connection merely states that he did not know, and that it was impossible for him to know, the facts set forth in the affidavits of Watkins, McOlung and McCaskey until after the trial, and that he used *653due diligence and tbe means be bad in bis power to ascertain all tbe evidence be conld bearing on bis case before tbe trial, —without saying wbat be did. Tbe rules applicable to new trial for newly discovered evidence require a statement of the particular efforts made to obtain tbe evidence, and whether due diligence was used is a question for tbe court arising from tbe facts.

Tbe affidavits of defendant and Watkins, both state that Watkins went to tbe office of defendant in Paden City about one o’clock p. m. for tbe purpose of going with defendant, in defendant’s automobile, to Watkins’ farm for some cabbage that Watkins bad sold defendant; and at that time defendant told Watkins be would not be able to go until after two o’clock, whereupon Watkins stated that be would “bang around” until that time, and that Watkins was on band, “hanging around”, ready to go, from one o’clock p. m., until they finally left about .two-forty p. m. These facts were known to defendant at tbe time be was served with a written notice of suit on tbe 16th day of January, 1922, informing him that judgment would be asked against him on a note for three thousand dollars executed by him on tbe 19th day of September, 1921. If be did not know of this note prior to that time, as be claims in bis testimony, be bad from then until tbe 2d day of March, 1922, tbe time of trial, a period of forty-five days, to consult Watkins, who could have given him tbe additional information contained in tbe affidavits of McCaskey and McClung. But supposing be did not know when, where and under wbat circumstances tbe plaintiff would claim tbe note in question bad been signed and executed by him? He was certainly put on notice when plaintiff gave her evidence in court on tbe trial of tbe ease. He could then easily have secured tbe testimony of Watkins, who was conducting a restaurant in Paden City, and McCaskey, shipping clerk and foreman of tbe packing room of Paden City Glass Manufacturing Company, in that town, which was only five miles from, and connected by street car with, tbe place of trial.

We must conclude from tbe showing made on tbe affidavits filed by tbe defendant that there was no diligence whatever *654on his part before the trial to obtain the alleged new evidence. He did not have to discover the evidence of the witness Watkins, for, as appears from the affidavit of defendant and that of Watkins, he knew this as far back as the 19th day of September, 1921; and the mere discussion of the matter with Watkins would have necessarily brought to light the facts claimed to be within the knowledge of McCaskey and Me-Clung.

A defendant is bound to look forward to, and provide for, such issues of fact as will probably arise in the course of the trial, and he cannot obtain a new trial on the ground of his failure to provide by means within his reaeh and well known to him for a contingency which he reasonably might have anticipated.. *Butts*v. *Butts,*81 W. Va. 56; *State*v. *Stowers,*66 W. Va. 198.

But the new evidence is only corroborative of the testimony of the defendant on the trial that plaintiff was not in his office on September 19th, 1921; and is therefore merely cumulative.

In the Butts case, supra, involving similar facts in this connection the court says: “The testimony of these witnesses, if admitted, would merely add to that of Miss Kirken-dall, the bookkeeper. She says the affiants were at the office on certain days. They would say the same thing. 'That makes their evidence cumulative. This alone bars it. There are four requisites: discovery after the trial; inability to discover it before by the exercise of reasonable diligence; materiality; and non-cumulativeness. All must be present. Lack of any is fatal.”

Tested by this rule, it would seem that'the only requisite clearly present in this alleged new evidence is that of materiality,' — for it is not even “new evidence,” at least in so far as what the affiant Watkins says.

For the foregoing reasons the judgment will be reversed, the verdict of the jury reinstated, and judgment entered thereon for the plaintiff.

*■Reversed, and judgment for plaintiff.*