
    McKee v. McDonald and Others.
    In proceedings for a new trial under § 356 of the code for causes discovered after the term, the record of the previous trial is not the foundation of the suit, and hence, a transcript thereof need not be filed with the complaint.
    APPEAL from the Putnam Common Pleas.
   Perkins, J.

Suit to obtain a new trial. Demurrer to the complaint sustained; final judgment for the defendants, denying a new trial. The suit was commenced at the February term, 1860. The complaint states that at the September term, 1860, a suit was tried in the Pxirbnam Common Pleas, wherein McDonald, Daggy and Daggy were plaintiffs, and McKee was defendant, being the parties to the present suit reversed; that judgment was rendered in said suit against McKee for a large sum, to wit, &c.; that the judgment was thus rendered upon the testimony of Jacob Daggy, who swore that he was not a partner in the firm of McDonald <& Go., and had no interest, &c.; and who further swore that said McKee told him, about November 1, 1859, that he, McKee, had bought eleven or twelve hpndred hogs for McDonald <& Go., at four dollars per hundred, pursuant to a contract with said company; that he was taken by surprise by this testimony, as it was contrary to the facts, and in no manner expected, and he could not then rebut it, though in truth, he had purchased but four hundred instead of twelve hunched hogs; and in truth, said Daggy was a partner in interest, &c.; and that said McKee has, since the term of said trial, discovered evidence by which he can prove the facts as in this complaint he states them, &c. He further states that Daggy was the only witness who swore to facts as stated in his testimony.

John A. Matson and J. A. Scott, for the appellant.

Williamson and Daggy, for the appellees.

The statute provides (2 R. S., § 356, p. 119) that a new trial may be applied for, within a year after final judgment, for causes discovered after the term, which application shall be by way of complaint, to which the adverse party shall answer, and when issue is formed, it shall be tried by the court upon the evidence that may be adduced, and a new trial granted or refused, as the court may determine upon the evidence.

The record of the previous trial is not the foundation of the suit in this class of actions, and a transcript of it need not, therefore, be made a part of the complaint.

The evidence of the witness Daggy went, in the original trial, to the establishment of two facts, to wit: that he was not a partner with McDonald, & Co., and that McKee had bdught twelve hundred hogs for McDonald da Co. The newly discovered evidence is to disprove these alleged facts; and though it may thus indirectly impeach Daggy, such is not the direct object of the evidence. We incline to think the Court should have overruled the demurrer, required the defendants to answer, and heard the application on its merits.

Per Curiam. — The judgment below is reversed, with costs. Cause remanded for further proceedings, &c.  