
    Berry and Another v. Daily.
    
      Phactice. — New Trial after Term. — Complaint under section 356 of tie code for a now trial of a cause wherein husband and wife were plaintiffs. One paragraph of the complaint in the original proceeding counted on a cause of action belonging to the wife, for which she might have sued alone, or, as she did, jointly with her husband.
    
      
      Held, that the application should have been by both plaintiffs, and being so, that the complaint was insufficient for not averring that the newly discovered evidence was not fully known to the husband at the time of the previous trial, but merely alleging that tho wife had since discovered it.
    APPEAL from the Clark Circuit Court.
    
      J. H. Sotsenburg and T. M. Brown, for appellants.
    
      T. W. Gibson and J. Morrison, for appellee.
   Frazer, J.

This was a complaint for a new trial under the statute, on account of newly discovered evidence. The newr trial was sought of a cause in which the present appellants (husband and wife) were plaintiffs, and the appellee was defendant. It is assigned for error that the court below sustained a demurrer to the complaint. The second paragraph of the complaint in the Original cause counted on a cause of action belonging to the wife, and for which she might have sued alone, or jointly with her husband; as she did. The complaint for a new trial does not aver that the newly discovered evidence was not fully known to the husband at the time of the previous trial, but merely that the wife has since discovered it. It was therefore clearly insufficient and liable to demurrer.

There is some uncertainty as to whether the complaint for a new trial was by both husband and wife or by the wife alone. It should have been by both, and seems to haye been so construed in the court below and by the parties, and we have so treated it, though we do not so decide.

Judgment affirmed, with costs.  