
    B. Small’s Adm’r, v. A. S. Jones, Adm’r.
    New Trial — Newly Discovered Evidence.
    One about to go into trial is required to make preparation and a diligent effort to discover and produce his evidence, and a new trial on account of newly discovered evidence will be denied where it is not shown that such evidence could have been discovered and produced at the trial by proper diligence.
    
      APPEAL FROM McCRACKEN CIRCUIT COURT.
    October 26, 1875.
    
      J. L. A. King, for appellant. P. D. Yeiser, for appellee.
    
   Opinion by

Judge Lindsay:

This is a proceeding to obtain a new trial of an action at law. The appellant was an administrator, and was under no disabilities at the time of the judgment, and was the plaintiff in the action. There is no averment in the petition that the judgment was obtained by fraud, and the only ground mentioned in the petition upon which relief could in any state of case be afforded, is that of newly discovered evidence. Secs. 581 and 573 of the Civil Code of Practice. It is, therefore, necessary to inquire into the alleged errors of the court, and the trial of the original action. These errors can be corrected, if at all, in no other way than by an appeal. The only evidence claimed to have been discovered is the receipt for one hundred dollars. The appellant says that after judgment, and after the expiration of the term at which it was rendered, he for the first time, “upon a careful examination of the paper of B. Small, decedent,” found this receipt. Why he did not make a careful examination of these papers, before judgment, is a fact not disclosed. It was certainly his duty to do so. Pie cannot now have a new trial on account of his lack of diligence in this respect.

Judgment affirmed.  