
    Freeman v. Gragg.
    
      Application for Rehearing under the Statute
    
    1. Application for rehearing under the statute; when petition fatally defective. — A petition for a rehearing under the statute after final judgment at law (Code of 1876, §§ 3161-2), on the ground of newly discovered evidence, which fails to show in what the testimony consisted, and that it was not merely cumulative of a fact or facts, of which some proof was made on the trial, and that it was not discovered until after the adjournment of the court at which the trial was had, is fatally defective.
    Appeal from Chilton Circuit Court.
    Tried before Hon. John P. Hubbard.
    This was a petition for a rehearing under the the statute, on the ground of newly discovered evidence, by the appellant, plaintiff in an action of detinue in which the appellee was defendant, and in which a trial had been had, resulting in a verdict and judgment for the appellee."
    The defendant interposed a demurrer to the petition; and, on the hearing, a judgment was entered, sustaining the demurrer, and quashing a supersedeas issued on the filing of the petition. That judgment is here assigned as error.
    W. A. Collier, for appellant.
    Name of counsel for appellee not disclosed by the record.
   STONE, J.

— Without referring to others, there are two conclusive reasons why the prayer of the petitioner in this cause should not have been granted. First, a failure to show the testimony was not discovered until after the adjournment of the term of the court at which the trial was had. This averment was necessary, as an excuse for not applying for a new trial. Second, a failure to show in what the. testimony consisted, and that it was not merely cumulative of a fact or facts, of which some proof was made on the former trial. The rule on these points is strict. — Ex parte Walker, 54 Ala. 577; Blood v. Beadle, 65 Ala. 103; 2 Brick. Dig. 280; Bowden v. Perdue, 59 Ala. 409.

Affirmed.  