
    Bailey, Wood & Co. v. Landingham et al.
    
      1. New Trial: newly discovered evidence. A new trial will not usually be granted upon the ground of newly discovered evidence when such evidence is merely cumulative in character. Pacts considered which' were held insufficient to entitle a party to a new trial.
    
      Appeal from Harrison District Oourt.
    
    Thursday, December 4.
    Petition for a new trial under the provisions of section 3154 of the Code, on the ground fraud was practiced on the court by the successful party. A demurrer to the petition was overruled. There was a trial to the court and the petition dismissed. The plaintiffs appeal.
    
      Barnhart efe Gadwell, for appellants.
    
      L. B. Bolter, for appellees.
   Seevers, J.

— The original action was brought to foreclose a mortgage. The defense pleaded was that the mortgaged premises? or a portion thereof, constituted the defeudants’ homestead, and that Mrs. Landingham never signed or executed the mortgage. There was a trial on such issue and witnesses wore introduced by both parties. The fraud is alleged to have been perpetrated because the evidence of the plaintiff’s witnesses was false and fraudulent. The mortgage was given to one George 'M. Poe, and he testified on the trial on the part of the plaintiffs. His evidence was contradictory to the evidence of the defendants’ witnesses. It is alleged in the petition there were other persons present when the mortgage was executed who were not introduced as witnesses on said trial, who will testify to the same facts as did the said Poe. It is, therefore, expected to establish the fraud by a preponderance of evidence. The newly discovered evidence is cumulative in character. A new trial is not usually granted for the purpose of introducing such evidence. But conceding there are cases when it would be proper to do so, and that duo diligeuce was used to discover'and procure the evidence, wo, are of the opinion a new trial should not be granted, because it is stated in the petition “ that the fact that any of the several persons hereinbefore named were so present (at the time the mortgage was executed), did not come to their (plaintiffs), knowledge, until about the close of the trial.”

This constitutes a clear and distinct admission that the plaintiffs knew before the close of the trial there were other persons present than said Poe and the defendants’ witnesses when the mortgage was executed. Due diligence required that an effort should have been made to procure the attendance of such persons. If this was impossible, or could not with proper efforts be accomplished, an application for a continuance should have been made. This was not done, but the chances were taken, and plaintiffs cannot be now heard to complain of a result caused by the want of due caution and care on their part. Clark v. Nelson, 40 Iowa, 678; Hopper v. Moore et al., 42 Id., 563.

It is insisted the demurrer admitted the allegations of the petition, and, therefore, plaintiffs were entitled to the relief asked. A demurrer only admits facts which are well pleaded. Legal conclusions are never regarded as admitted. But we hold that, if everything well pleaded in the petition be regarded as established, the plaintiffs are not entitled to the relief asked. Therefore, it is immaterial what is the effect of the demurrer,’ or whether an answer was filed or not. If an answer was required, which we neither concede nor deny, it was waived by the stipulation that there should be a trial as to the matters set forth in the petition.

Affirmed.  