556 COLLINS VS. MCPEAK. [10 COLLINS VS. MCPEAK. Where a motion is made for a new trial on the ground of newly discovered testimony, and overruled, the party should put upon record, by bill of er - eeptions, the evidence introduced on the trial, in order that this Court may determine whether the newly discovered testimony is cumulative, &c., otherwise this Court will not review the decision of the Court below o'verruling the motion for a new trial.
ARK.] COLLINS VS. MCPEAK. 557 Writ of Error to Crittenden Circuit Court. James McPeak brought an action of • assumpsit against Thos. M. Collins, in the Crittenden Circuit Court, to the April term, 1845. Plaintiff claimed, in his declaration, $800 for carrying the mail for defendant, on a certain route for which defendant was contractor; and $400 for work and labor upon the farm of defendant. Defendant pleaded non assumpsit, set-off, and payment, to which pleas issues were made up. The cause was continued from term to term until the NOvember term, 1849, when it was submitted to a jury, and verdict and judgment in favor of plaintiff fOr $291.21 damages. Defendant filed a motion for a new trial on the grounds : 1st. That the verdict was contrary to evidence : 2d: That the damages were excessive : and 3d. That, "since the trial of this cause, defendant has discovered testimony of George W. Underhill, which he knew not of before the trial, which is material to this defenClant, to wit : that, for a long space of time for which said plaintiff claims compensation, he was not engaged in any valuable setvice for said defendant ; and by which testimony he expects to establish the payment of this defendant the sum of $75, to Fred. P. Stanton, which item this defendant was wholly unable to prove at the trial." To which was appended the affidavit of defendant that he had discovered the testimony set forth in the motion after the trial. The Court overruled the motion, to which the record states defendant excepted, but no bill of exceptions was taken, nor was the evidence introduced upon the trial in any manner put upon the record. The cause was tried in the Court below before the Hon. JoHN T. JONEs, Judge. Error by defendant. CUMMINS, for the plaintiff.
558 COLLINS VS. MCPEAK. {10 S. Fr. HEMPSTEAD, for the defendant, contended that, as the evidence did not appear by the record, either by bill of exceptions or otherwise, this Court could not determine whether the motion for a new trial ought to have been granted or not, and was boimd to presume in favor of the judgment, and he cited Lenox vs. Pike, 2 Ark. 19. Robins vs. Fowler, ib. 143. Burriss vs. Wise, ib. 42. Taylor vs. Spears, 3 Eng. 436. Mr. Chief Justice JOHNSON delivered the opinion of the Court.
The testimony in this case has not been saved and presented to the consideration of this Court in any one of the modes known to the law. ( See Lenox vs. Pike, 2 Ark. 14.) This Court, in the case of Robins vs. Fowler, (2 Ark. 144,) laid down the principles app . l icable to new trials : 1st. The testimony must have been discovered since the trial : 2d. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial : 3d. It must be matérial to the issue : 4th. It must go to the merits of the case, and not impeach the character of a former witness : and 5th. It must not be cumulative. The plaintiff in error having wholly failed to bring the testimony upon the record upon filing his motion for a new trial, it is now utterly impracticable for this Court to determine whether the additional evidence which he proposes to procure would go to the merits, or impeach the character of a former witness, or whether it would not merely tend to establish some point to which he offered proof upon the trial in this case. This Court, in thc case of Robins vs. Fowler, already referred to, also said that " the Court below, it is true, say that the testimony is mater-rial to the issue, but do not say that it related to any new fact. The whole of the evidence adduced before the jury, with that proposed to be produced, has been also before the Court below ; that Court has thought proper, in the exercise of that legal discretion with which it is vested, to refuse the application. No _ doctrine is better settled than that which regulates applications of this sort, addressed as they are to the sound discretion of the
ARK.] COLLINS VS. MOPEAK. 559 Court. That discretion is to be exercised, it is true, not arbitrarily, but in consonance with the rules and usages of laW in furtherance of the justice of the cause. From any thing apparent on the record, we are totally at a loss to perceive upon what fact it was expected this Court bould predicate an opinion. The bills of exception contain no statement of the evidence given on the trial, and the record furnishes nothing from which we can infer either the nature or weight of evidence upon which the parties thought proper to rest the decision of their cause. As the party excepting to the decision of the Court has not thought proper to make the evidence produced on the trial part of the record, every intendment should be indulged against him, and in revising that decision the Court is bound to presume every fact, susceptible of proof and not repugnant to the statements contained in the bill of exceptions, to have been fully established." The doctrine there laid down applies here with its fullest force. In this case, there is no bill Of exceptions whatever, nor even a statement of the evidence over the signature of the judge ; and, as a necessary consequence, we cannot determine from the record whether the additional evidence sought would be cumulative or not, and, unless it is shown affirmatively that such would not be its character, we are bound to presume in favor of the judgment of the Court below and sustain its decision in overruling the motion for a new trial. The judgment of the Circuit Court of Crittenden county, herein rendered, is, therefore, in all things, affirmed.
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