
    WILLIAM D. FOSTER, Respondent v. FREDERICK REICH, Appellant.
    
    NEWLY DISCOVERED EVIDENCE MUST NOT BE CUMULATIVE MERELY. — A new trial should not be granted upon the ground of newly discovered evidence^ when it appears that such evidence is merely cumulative.
    Appeal from the Third District Court.
    The facts appear in the Opinion.
    
      Hempstead & Kirkpatrick, for Respondent.
    
      McCurdy & Morgan, for Appellant.
   Boreman, J.,

delivered the Opinion of the Court.

This is an appeal from an order of the.District Court overruling a motion for a new trial, filed by Defendant. There is no appeal from the judgment.

The only point which is of importance in the case is in reference to the claim of newly discovered evidence by the Defendant, (Reich). The record is very imperfect, but we have examined what purports to be the statement of the case, and also the affidavit filed with the motion for a new trial. We sec no error in the action of the Court below in finding this newly discovered evidence to be cumulative. It is certainly of that class of evidence, and besides the most of it would have been unimportant upon the trial, had it been known and used at that time. The action of the Court below, therefore, in refusing a new trial is affirmed.

McKean, C. J., and Emerson, J., concurred.  