
    Mary S. Hemmer, Appellant, v. Charlotte M. Burger.
    New trial: newly discovered evidence. A new trial will not be granted on the ground of ne'wly discovered evidence where such evidence is merely cumulative.
    
      Appeal from Johnson District Court. — HoN. O. A. BytNG-toN, Judge.
    Monday, June 12, 1905.
    This case comes to ns on an appeal from an order denying a new trial because of newly discovered evidence. Tbe issue in tbe original case was tbe boundary line between tbe properties of tbe parties, tbe plaintiff averring and contending that tbe true boundary line was marked by a division' fence, recognized and maintained by the parties and their grantors for more than 10 years, and tbe defendant denying tbe existence of a fence for a period of 10 years, and tbe other allegations of tbe petition. After a full bearing on tbe merits, there was a judgment for tbe defendant, and thereafter within the statutory time a petition for a new trial was filed, and a bearing bad thereon. A new trial was denied, and the plaintiff appeals.-
    
      Affirmed.
    
    
      Howell S Wilson and Baker & Ball, for appellant.
    
      O. A. Ewing, for appellee.
   SherwiN, C. J.

Tbe questions tried in tbe original case were whether tbe division fence was built ten- or more years before suit was commenced, and whether it was recognized by tbe owners of tbe land as tbe true boundary between them, the real contest being over tbe time when tbe fence was built. Tbe plaintiff’s evidence located a certain wood-house as being on the boundary line that she claims to have been so acquiesced in, and a fence extending west from tbe northwest comer of tbe woodbouse as tbe fence that bad been built more than ten years before. Tbe newly discovered evidence on wbicb a new trial was asked related to tbe location of tbe same woodbouse and fence, and -to tbe time when they were built, and to nothing else; and under tbe well-settled rule it was merely cumulative evidence, for wbicb a new trial will not be granted. Donnelly v. Burkett, 75 Iowa, 613; State v. Oeder, 80 Iowa, 72; Stineman v. Beath, 36 Iowa, 73; Boggess v. Read, 83 Iowa, 548; Bank v. Ins. Co., 40 Iowa, 572; Morrow v. Ry. Co., 61 Iowa, 490. It is not always an easy matter to determine whether evidence is merely cumulative or otherwise, but a careful examination of tbe plaintiff’s original evidence and tbe newly discovered evidence leaves no doubt in oiir minds as to tbe character of tbe latter.

Tbe appellee also urges that reasonable diligence was not shown, but we do not pass on this point, preferring to place our decision on tbe ground stated. We think there was no abuse of discretion in refusing a new trial, and tbe order is affirmed.  