
    Link v. Union Pac. Ry. Co.
    (April 19, 1892.)
    Review on Appeal — Harmless Error — New ■' Trial — Newly-Discovered Evidence.
    1. Where ejectment is brought by a railroad company for land claimed under certain grants, and the defendant fails to show, as is requisite, that her right had attached prior to the location of the road and the withdrawal of the land from private entry, error occurring in the admission or rejection of evidence on other questions in the case cannot be held prejudicial.
    2. A new trial will not be granted on the ground of newly-discovered evidence, where such evidence is merely cumulative, and does not go to the material point of the case.
    
    
      NOTE.
    New Trial — Newly-Discovered Evidence.
    A new trial will be granted on the ground of newly-discovered evidence when it appears that the evidence was brought to the knowledge of defendant after the trial, and could not have been previously discovered, (Greenwalt v. Tucker, 10 Ted. Rep. 884; Seeley v. Perry, [Iowa,] 3 N. W. Rep. 678; Kelleher v. Kenney, [Cal.] 4 Pac. Rep. 1095; fleatheote v. Haskins, [Iowa,] 38 N. W. Rep. 417; Norris v. Hix, Id. 395;) or where the witness whose testimony is relied upon to furnish such evidence was a witness at the trial, (Achornv. Andrews, [Me.] ISAtl. Rep. 793.) The granting of a new trial for newly-discovered evidence is largely in the discretion of the trial judge, (Eldridge v. Railway Co., [Minn.] 20 N. W. Rep. 151; Insurance Co. v. Harvey, [Va.] 5 S. E. Rep. 553;) the exercise of which will not be disturbed unless it appears that it violated a clear legal right of the appellant, or that it involved apn abuse of judicial discretion, (Lampsen v. Brander, [Minn.] 11 N. W. Rep. 94; Smith v. Smith, [Wis.] 8 N. W. Rep. 868; Regents v. Linscott, [Kan. ] 1 Pac. Rep. 81.) .
    A new trial will not be granted on the ground of newly-discovered evidence when such evidence is merely cumulative, or is upon unimportant matters in the case, or is of an impeaching character, or where, in the opinion of the court, such evidence, if produced, would not affect the action or verdict of a jury. Brown v. Evans, 1/ Fed. Rep. 912; Marshall v. Mathers,- (Ind. Sup.) 3 N. E. Rep. 120; Blackburn v. Crowder, (Ind. Sup.) 10 N. E. Rep. 933; Donnelly v. Burkett, (Iowa,) 34 N. W. Rep. 330; Ethridge v. Hobbs, (Ga.) 3 S. E. Rep. 251; Bailey v. Landingham, (Iowa,) 3 N. W. Rep. 460; Hickenbottom v. Railway Co., (Iowa,) 11 N. W. Rep. 652; Morrow v. Railway Co., (Iowa,) 16N. W. Rep. 572; Halli-day v. Briggs, (Neb.) 18 N. W. Rep. 55; Krueger v. City, (Wis.) 27 N. W. Rep. 836g'Ketchum v. Breed, (Wis.) 26 N. W. Rep. 271; Baughman v. Penn, (Kan.) 6 Pac. Rep. 890; Reed v. Drais, (Cal.) 8 Pac. Rep. 20; Chandler v. Thompson, 30 Fed. Rep. 38; De Hart v. Aper, (Ind. Sup.) 8 N. E. Rep. 275; Railroad Co. v. Boon, (Tex. Sup.) 1 S. W. Rep. 632; Walker v. Brown, Id. 797; Munro v. Moody, (Ga.) 2 S. E. Rep, 688; Hart v. Jackson, (Ga.) 3 S. E. Rep. 1; Fuller v. Harris, 29 Fed. Rep. 814; Pennsylvania Co. v. Nations, (Ind. Sup.) 12 N. E. Rep. 309; Cirkel v. Ellis, (Minn.) 31 N. W. Rep. 513; Railway Co. v. Wood, (Tex. Sup.) 7 S. W. Rep. 372; McCormick v. Railroad Co., (Colo. Sup.) 17 Pac. Rep. 542; Petefish v. Watkins, (HI. Sup.) 16 N. E. Rep. 248. ^
    
      Appeal from district court, Albany county; M. C. Saufi.ey, Judge.
    Action of ejectment brought by the Union Pacific Railway Company against Cecilia E. Link. Erom a judgment for plaintiff, defendant appeals.
    Affirmed.
    
      William Ware Peck and W.B.Fishback, for plaintiff in error. Lacey & Van Le-vanter, for defendant in error,
    
      
       See note at end of case.
    
   Conaway, J.

Defendant in error brought its action in the district court for the possession of a part of section 35 in township 16 N., of range 73 W. of the sixth P. M., claiming by virtue of a patent issued to its grantors, of date January 5, 1876. Plaintiff in error claimed the premises in ■controversy by virtue of possession and improvement thereof by her husband and other parties, to whose rights she claims to have succeeded, constituting a claim of some kind under the land laws of the United ¡states. This is claimed to be either a homestead claim, or pre-emption claim, or a bona fide improvement claim, which, it is claimed, attached prior to the definite location of the line of the Union Pacific Railway, and the withdrawal of the land from pre-emption, private entry, and sale, ■under the land-grant acts of 1862 and 1864 to the Union Pacific Railroad Company, the predecessor of the defendant in error. Defendant in error proved title under the patent issued under these land grants, and subsequent transfers to it. It was then incumbent on plaintiff in error to show at least that the claim under which she holds possession had attached prior to the withdrawal of the land. This she failed to do. A large number of assignments of error are set up, in the rejection of evidence offered by plaintiff in error, and in the admission of evidence of defendant in error over the objection of plaintiff in error. The rejected evidence does not go to the point of showing that any valid claim had attached to the land prior to its withdrawal. In fact, there was no evidence offered to show when the definite location of the line of the Union Pacific Railroad was made, and when the withdrawal of the land took place. Under these circumstances, if any error occurred in the admission or rejection of testimony on other questions arising in the case, it could not have been prejudicial error.

Error is assigned to the overruling of the motion for a new trial on the ground of newly-discovered testimony. The testimony is not shown to be newly discovered. It is merely cumulative, and does not go to the material point already specified. It is not claimed that it would show the date of the withdrawal of the lands. Nothing short of such a showing could authorize the reversal of the judgment. This record shows no prejudicial error. The judgment is affirmed.

(Iroesbeck, C. J., and Merrell, J., concur.

^ On the application the party moving must show —Eirst, that the proposed evidence has been discovered since the trial, and that due diligence was exercised to discover it prior to that time; second, that the evidence is competent and material. Town of Manson v. Ware, (Iowa,) 19 N. W. Rep. 275; Carson v. Henderson, '(Kan.) 8 Pac. Rep. 727; Brickley v. Walker, (Wis.) 32 N. W. Rep. 773; Eenno v. Chapin, (Minn.) 8 N. W. Rep. 762. The affidavit must set forth the facts relied upon as constituting due diligence on the part of the applicant. Goracbi v,. Hintz, (Neb.) 14 N. W. Rep. 379; Smith v. Wagaman, (Iowa,) 11 N. W. Rep. 713; Pinschowers v. Hanks, (Ne< ) IPac. Rep. 454; Wilkes v. Wolback, (Kan.) 2Pac. Rep. 508; Ross v. Sedgwick, (Cal.) 10 Pac. Rep. 400; Patterson v. Collier, (Ga.) 3 S. E. Rep. 119; Moores v. Wills, (Tex. Sup.) 5 S. W. Rep. 675; Allen v. Bond, (Ind.) 14 N. E. Rep. 492; Poul-lain v. Poullain, (Ga.) 4 S. E. Rep. 81; Boot v. .Brewster, (Iowa,) 36 N. W. Rep. 469; Railway Co. v. Wood, (Tex.) 7 S. W. Rep. 372; Pember-ton v. Johnson, (Ind. Sup.) 15 S'. E. Rep. 801; Lee v. Bermingham, (Kan.) 18 Pac. Rep. 229; Mercer v. Mercer, (Ind. Sup.) 17 N. E. Rep. 182.

Where the affidavit in support of the application is met by counter affidavits, and there is no probability upon the record that the result would be affected, a new trial will be refused. Peterson v. Paust, (Minn.) 14 N. W. Rep. 64.

See, also, Chandler v. Thompson, 30 Eed. Rep. 38; Donnelly v. Burkett, (Iowa,) 34 S. W. Rep. 330; Pennsylvania Co. v. Nations, (Ind. Sup.) 12 N. E. Rep. 309; Blackburn v. Crowder, (Ind. Sup.) ION. E. Rep. 933; Cirke) v. Ellis, (Minn.) 31 N. W. Rep. 513; Campbell v. Holland, (Neb.) 35 W. W. Rep. 871; Brooks v. Dutcher, (Neb.) 36 N. W. Rep. 128; O’Neil v. O’Neil, (Ill. Sup.) 14 N. E. Rep. 844; Tate.v. Tate, (Va.) 7 S. E. Rep. 352; Petefish v. Watkins, (Ill. Sup.) 16 N. E. Rep. 248; McCormick v. Railroad Co., (Cal.) 17 Pac. Rep. 542; Brinson v. Eaircioth, (Ga.) 7 S. E. Rep. 923; Mercer v. Mercer’s Adm’r, (Ky.) 7 S. W. Rep. 807; Whitney v. Saxe, (City Ct. N. Y.) 2 N. Y. Supp. 653; Railway Co. v. Wood, (Tex. Sup.) 7 S. W. Rep. 372; City of Sterling v. Merrill, (Ill. Sup.) 17 N. E. Rep. 6; City of Olathe v. Horner, (Kan.) 16 Pac. Rep. 468; Brown v. Railway Co., (Ark.) 22 S. W. Rep. 203; Ver-dery v. Railway Co., (Ga.) 9 S. E. Rep. 1133; Mercantile Bank v. Hawe, 33 Mo. App. 224; Audis v. Richie, (Ind. Sup.) 21 N. E. Rep. 1111; Smith v. Grover, (Wis.) 42 N. W. Rep. 112; Goldsworthy v. Town of Linden, (Wis.) 43 N. W. Rep. 656; Kaul v. Brown, (R. I.) 20 Atl. Rep. 10; State v. Oeder, (Iowa,) 45 N. W. Rep. 543; Railroad Co. v. Boon, (Tex. Sup.) 1 S. W. Rep. 632; Baker v. Moor, (Ga.) 10 S. E. Rep. 737; Jones v. Railroad Co., (Minn.) 43 N. W. Rep. 1Í14; Hawkins v. Kei-mode, (Ga.) 11 S. E. Rep. 560; Oil Co. v. Thompson, (Tex. Sup.) 13 S. W. Rep. 60; Erskine v. Duffy, 76 Ga. 602; Bigelow, v. Sickles, (Wis.) 44 N. W. Rep. 761; Carder v. Bank of West Virginia, (W. Va.) 11 S. E. Rep. 716; Railway Co. v. Clough, 33 111. App. 129, affirmed in 25 N. E. Rep. 664; Williamson r. To-bey, (Cal.) 25Pac. Rep. 65; Douglass v. Anthony» (Kan.) Id. 853; Weiting v. Town of Millston, (Wis.) 46 N. W. Rep. 879; Houston v. Kidweil, (Ky.) 14 S. W. Rep. 377; Blair v. Madison Co.,. (Iowa,) 46 N. W. Rep. 1093; Vanderburg' v.. Campbell, (Miss.) 8 South. Rep. 206; Thrasher v. Postel, (Wis.) 48 N. W. Rep. 600.  