The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-12-22
ELLEN r. vASDERBURsH
BETTE CusS1NsHAM, ct al.


BETTE CUSNINGHAM, ct al.
Appeal from the Circuit Court of War
len county. Hon Ralph North,
Judge
McCabe & Anderson, fofythe appel
liant.
for the appellee.
Ellen r. Vanderburgh brought tins
action of ejectment against Bette Gun
ningham 10 recover possession OF GER
tain piece of land in Warren county
w. W. Campbell, landlord OF bettle
Cunningham. was admitted TO defend.
1t appears that the lots of plaintln ana
defendant adioined certain road known
as the Ridge Road" being the bounda-
nv line between them. On the trial the
sole question in dispute was the location
os this roadA and whether the same nad
not been changed since the plalnnn
deed was made in 1860; whereby plain
tin lost the land in question. Much eV-
idence as to the location of the road was
introduced on this point by both sldes,
and among the witnesses was one Bowie,
introduced on behalf of plaintiff. The
Jury found for the plaintiff, and the de-
PENDANT moved for new trial because
I'D the verdict was contrary to the evil
aence (2l because of newly discovered
material evidence, and other grounds
set forth in the following affidavit:
Defendant makes oath that he can
prove by Few. G. K. Marshall, Benjamin
Dart, Joseph Green, w. V. McCray and
Charlie McCray, that the ridge road
mentioned in the pleadings and evidence
in this cause, was located where 1t now
is, or east of the present road, and east
of the tract of land sued for by plaintiff;
that said persons will testify to that
| fact, and were well acquainted with said
| locality and said road and the Jackson
| road at said point for many years prior
to 1860; that affiant did not know and
had no information before the trial OF
this case, that said persons were SO &C
quainted with said matters, and would
so testify; that he believes that he can
have said persons before the court to
testify as aforesaid, if new trial of this
case should be granted.
| Further, affiant says that he was sur
prised by the testimony of the witness,
A. Bowie, the said Bowie having made
to other persons material statements
contrary to his testimony on the trial
and which statements so made on said
trial, atfiant was not prepared to contra
dict, because of such previous state
ments.
"And further, affiant says that he car
prove that said A. Bowie, the principal
witness for the plaintiff, is unworthy Of
belief, even upon oath, by the testimony
of Charles Peine, DR.. Granville Hicks
and Joseph Green, who will so testify
that affiant did not know, and was no
informed of this fact, and that said per
sons would so testify, until after the
trial of this cause"
The court granted new trial. Or
the second the jury found for the de
PENDANT, and the plaintiff appealed.
ARNOLD, J., delivered the opinion of tn,
court.
No valid reason is shown for setting
aside the verdict, on the first trial Tn,
affidavit for the new trial, in SO far as il
relates to the newly discovered evidence
in reference to the location of the road
is defective and insufficient, because il
fails to show that the afiiant had mad
any efforts to discover the testimon,
which he alleged existed on that sub
iect, or that it could not have been dis
covered and obtained, by reasonable dill
igence, at the first trial. Watson V
Dickens, II S. & NJ, COS Cooper V. TIL
State, 90 Miss, 1893.
With no error of law, and with nu
merous witnesses on each side, testify
ing directly to the only disputed fact il
the case, the issue had. been determine,
by the jury in favor of appellant, anC
she should not have been deprived o
the fruits of the contest, except for SOM
cause recognized by law as sufficient fol
thai purpose.
The discretion exercised in granting
new trials, is governed by legal rules
rather than by the mere will or pleasur
of the Judge. Otherwise, the delays an,
uncertainties of litigation, might be in
creased to an intolerable degree. Ora
: ham & Waterman on New York Trials
46, AZ.
That appellee, the defendant below
was able to find other witnesses
who on a new trial, would support tn
issue on his part, or would contradic
or impeach the eredibility of a singh
: witness of his adversary, was not NOR
than could be done by almost every de
feated litigant.
1t has been often decided in this Stat
and elsewhere, that newly discovers
testimony, to impeach the character o
witness, or which is merely cumuls
tive, does not afford grounds for a ne'
trial.
Moore V. Chicago &c. R. R. Co., 5
Miss, 243.
Cooper V. The State, SO ID, 1893.
The judgment is reversed, the las
verdict set aside, the first verdict re
stored, and judgment entered Thereon