
    German National Bank of Beatrice v. Jacob Edwards.
    Filed January 8, 1902.
    No. 10,820.
    Commissioner’s opinion, Department No. 3.
    1. 'New Trial: Newly-Discovered Evidence. Newly-discovered evidence merely cumulative in character may be a sufficient ground for granting a new trial, if the circumstances of the record are such as to render it highly probable that it would, if produced, have changed the result of the trial.
    2. -: Order: Newly-Discovered Evidence. An order denying a motion for a new trial and an order denying a petition for a new trial on the g-round of newly-discovered evidence may both be reviewed in a single proceeding in error.
    Error from the district court for Pawnee county. Tried below before Letton, J.
    
      Beversed.
    
    
      Samuel P. Davidson, for plaintiff in error.
    
      Henry G. Lindsay, contra.
    
   Ames, C.

This is a petition in error to review a judgment of the district court in an action of replevin. The property in controversy is claimed by the plaintiff below, who is the plaintiff in error, under a chattel mortgage. The mortgage describes several animals, and among them “one mare colt,” all of said property being designated as being “kept in Filley,” in this state. The principal question of fact mooted in this suit is whether at the time of the execution of the mortgage the mortgagor had moré than one mare colt kept at Filley, and this inquiry, on account of circumstances not necessary to be detailed in this opinion, involves a further inquiry as to the color of the colt intended to be conveyed by the mortgage. There is a conflict of evidence upon both these questions, but none of it is of the most satisfactory character, so that the plaintiff contends with a good deal of force that there is not sufficient evidence in the récord to support the verdict which was returned in favor of his adversary. But it is not intended to decide whether this contention could be upheld, or whether, if the verdict had been for the plaintiff, a like contention might not have been made with equal force by the defendant. In due season after the return of the verdict, the plaintiff filed a motion for a new trial, which was overruled; and at the expiration of about four months thereafter he also filed a petition for a new trial in which he gave the names of several witnesses, who, he alleged, had personal knowledge upon both the matters of fact above mentioned and would, if permitted, testify as to both of them in support of the plaintiff’s contention. It was also averred that before the trial the plaintiff had made diligent search for witnesses qualified as above mentioned. but had been unable to discover any, and that knowledge of the witnesses named had not come to the plaintiff until after the conclusion of the trial. To this petition a demurrer was interposed, which was sustained, and the plaintiff duly excepted. We think this order was erroneously made. A new trial will not be granted for newly-discovered evidence merely cumulative in character, 'uless the circumstances of the record are such as to renter it highly probable that the evidence would, if produced, have changed the result of the trial. Hoffine v. Ewings, 60 Nebr., 729, and cases cited. We think that the situation in this case, of which a brief description is above given, brings it within the exception to the rule.

The petition in error assigns as error both the ruling on the motion for a new trial and that sustaining the demurrer to and denying the petition. The defendant in error objects that the latter ruling is a final order, reviewable by itself independently of the order overruling the motion for a new trial, and is therefore in effect a new action, and that for that reason complaint can not he made of both orders in a single petition in error. We do not think this contention can he upheld. The motion and petition attack the same verdict, upon grounds prescribed by the same section of the Code. The matter alleged in the petition might have been, and presumably would have been, included in the motion, had knowledge of it come to the plaintiff in error within the time prescribed for the filing of the latter. It is because of the frequency of the occurrence of a like state of affairs that the statute permits the filing of the petition at a later date than is prescribed for the filing of the motion. But while the two proceedings are distinct in so far that each may he reviewed separately from the other, no good reason occurs to ns why that course should be regarded as being exclusively permissible. On the other hand, the method adopted in this case is to be commended as liaving a tendency to expedite the litigation and to save costs and expenses.

Other matters assigned for error are of such nature as that it may be anticipated that they will not recur upon a second trial, and their discussion at the present time is, therefore, not deemed important.

It is recommended that the judgment of the district court be reversed and a new trial awarded. .

Duffie and Albert, 00., concur.

By the Court: For reasons stated in the foregoing opinion, it is ordered that the judgment of the district court he reversed and a new trial awarded.

Reversed,  