On Rehearing. In the original opinion in this case appears this statement, on page 4 of the opinion, ante, p. 101, 180 So. 336, to wit:
"After the trial, upon a renewed search for evidence, and, as we read the record, *Page 102 purely by accident, he [defendant] found a cancelled check, which, if he had had same at the trial, would have, in our opinion, changed the jury's action.
"At any rate, upon the hearing of appellee's motion to set aside the verdict of the jury, and the judgment rendered thereon, the learned trial judge was of the opinion that this newly discovered evidence was of that nature. And he accordingly granted appellee's motion — basing his action, as the judgment entry recites, upon the ground of 'newly discovered evidence.' "
In the brief of appellant's counsel the importance of the check with its recitals is not minimized as evidence, but it is contended that the check itself is merely cumulative of what had taken place on the trial, and that the defendant had not laid a proper predicate for the introduction of the check.
This is based upon the testimony of the defendant given on the trial to the effect that there had been such a check and that he had searched diligently for it in places where he would usually have kept such a paper and could not find it.
On the hearing of the motion for a new trial the defendant testified that prior to the time of the trial of the case on April 7, 1936, he made a search a number of times for the check, and, detailing his efforts, he said: "I had a drawer at home that I kept my papers in. I had my desk at the warehouse and a desk at home. I first went through this drawer that I kept all of my checks and cancelled checks and things in and took out every check from all the banks, both the bank in Florida and the bank in Birmingham that I did business with and looked at every check beginning with 1925 and on up until the time this suit was filed, and later. They weren't in there. I went through my desk at the office. I couldn't find them. My wife searched. Then we made several searches. I took out every paper and every check and everything I had, and when I got through, why, I just bundled them all in a great big bundle, these checks, and wrapped them up and put them away. And then I went back again, and when this trial came up, the night before my wife and I went through all of those things again to see if we could find it. We weren't able to find it. I am talking about this $500.00 check."
The defendant continued to further testify that after the trial of the case, during which he had been charged with fraud by the attorney representing the plaintiff, he continued the search, testifying in detail as to its thoroughness and into every place where the check might have been found; finally, coming to the finding of the check, he testified as follows: "We were working together. We went through my wife's desk. We went through her desk, went through the top part of it and all and then we got down — it has a little drawer on the underside, and it was full of papers, and we took out every paper in there and finally we got everything out. There was a check book down in the bottom of this drawer, and in that check book — it was just the stubs, you know, a used book, just the stubs of the book — and in that thing were three checks, and this was one of them — (the five hundred dollar check in question)."
He further testified that he was not in the habit of filing his canceled checks in this place, that the stub check book referred to was not a book of the bank on which that check was drawn, it was a different bank; the check being drawn on a Florida bank and the stub book being that of a Birmingham bank.
The check was then introduced as evidence, disclosing on its face that it went to the credit of the plaintiff on the books of Pease-Powell Corporation in West Palm Beach, Fla.
It further appears from the evidence that the check had in some way gotten into the desk of defendant's wife and among her papers, where it was not natural for him to look in trying to find the check.
The order of the court in granting the motion for the new trial is based upon the discovery of this new evidence — "which the court considers material, warrants the granting of this motion."
We are of the opinion that the evidence discloses all the diligence that is required necessary for a predicate in the introduction of newly discovered evidence, and the only question for us to determine is to whether or not the check is merely cumulative of the testimony which had been given on the main trial.
In the case of Mullong v. Mullong, 178 Iowa 552,159 N.W. 994, 995, in a case in all respects similar to the case at bar, the Iowa court, after holding facts testified to as being a sufficient predicate, held: "Cumulative testimony is testimony of the same kind and to the same point. The testimony does go to the same point; that is to the fact of payment, but it is not of the same *Page 103 kind. The testimony adduced at the trial was oral, and directed to the fact of payment, giving the circumstances thereof; the newly discovered testimony is written, and amounts, if the receipt is genuine, to an admission on the part of plaintiff that he did receive the money from defendant. Manifestly the newly discovered testimony was not cumulative."
To the same conclusion is the case of Bullard v. Bullard,112 Iowa 423, 84 N.W. 513; Guth v. Bell, 153 Iowa 511,133 N.W. 883, 42 L.R.A., N.S., 692, Ann.Cas. 1913E, 142; Smith v. Smith,160 Iowa 111, 140 N.W. 659; to which may be added as persuasive of the proposition, West Virginia Land Co. v. May, 166 Ala. 127,52 So. 315; 46 Corpus Juris, 257. From all of which we conclude that cumulative evidence is of the same kind and character, and where the newly discovered evidence is of a higher type or character, it cannot be classed as merely cumulative so as to prevent a trial judge from basing his action in granting a new trial for and on account thereof.
The foregoing has been written in response to the earnest insistence of appellant's counsel on application for rehearing. But it is written in full concurrence with the statement on this point appearing in the opinion of RICE, Judge, on the original submission.
The opinion is extended, and the application for rehearing is overruled.