Berry v. Metzler

Burnett, J., after stating the facts, as above, delivered the opinion of the Court^-Murray, C. J., concurring.

The affidavit upon which the motion for a new trial was alone based, does not state that the evidence itself was not discovered until after the trial, but only that the defendants “were not aware of the materiality of the testimony until too late to procure it in time to use on the trial.” It was not stated that the materiality of this testimony was discovered too late to apply for a continuance. No ground for surprise is stated, nor is it stated that the testimony was not cumulative. The materiality of the testimony is so evident, that due diligence could not have mis[419]taken it. A party is bound to know the materiality of testimony known to him, except in cases of surprise at the trial. And when the party discovers new testimony before the trial, but too late to procure it, he should apply for a continuance.

Judgment affirmed.