
    Will Kelley v. J. W. Kelley.
    No. 15,806.
    (99 Pac. 1134.)
    
      Case-made—Right to Make Lost. Held that where after judgment time to make a case has expired the right so lost can not be restored by filing a motion for^ a new trial on the ground of newly discovered evidence.
    Error from Franklin district court; Charles A. Smart, judge.
    Opinion filed January 12, 1909.
    Affirmed.
    
      F. A. Waddle, for plaintiff in error.
    
      Wilbur S. Jenks, for defendant in error.
   Per Curiam:

After a trial and judgment a motion for a new trial was filed and denied. Time was then taken to make a case. This time was permitted to expire without action. The defeated party afterward filed a motion for a new trial on the ground of newly discovered evidence, supporting it by affidavits. This was denied, time being again fixed for making a case. Within this time a case was served and settled, upon which we are now asked to review the proceedings prior to the judgment as well as the ruling on the second' motion for a new trial. Under these circumstances the case-made presents no question except whether error was committed in denying the motion for a new trial on the ground of newly discovered evidence. The evidence given at the trial is not preserved, and we are therefore unable to estimate the importance of the evidence set out in the affidavits. The judgment is affirmed.  