(after stating the facts). 1. This suit was brought under section 6220 of Kirby’s Digest, which provides that, “Where grounds for new trial are discovered after the term at which, the verdict or decision was rendered, the application may be made by petition filed with the clerk not later-than the second term after the discovery, on which a summons shall issue, as on other complaints, requiring the adverse party to appear and ánswer it on or before the first day of the next term.”
The court had jurisdiction after the expiration of the term at which the judgment was rendered to vacate it and grant a new trial upon newly discovered evidence under the authority of section 4431 of Kirby’s Digest.
The provision of section 1188 of Kirby’s Digest, providing that “no appeal to the Supreme Court from an order granting a new trial, in any case made on bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contains an assent on the part of the appellant that, if the order be affirmed, judgment absolute shall be rendered against the appellant,” has no application to proceedings to vacate the judgment under sections 4431 and 6220, supra. Ayers v. Anderson-Tully Co., 89 Ark. 160.
2. Under our decisions, the petition to set aside the judgment after the expiration of the term at which it was rendered and to grant a new trial must state facts and circumstances sufficient to show that the failure to adduce the alleged newly discovered evidence at the former hearing was through no lack of diligence on the part of the petitioner. It must also state that the facts and circumstances came to his knowledge since the former trial, and set out the facts, and these facts must be sufficient to convince the court that had they been introduced at the former trial they would probably have changed the result. The "facts alleged must be competent to prove-the. issue,'must not be cumulative of those previously relied on, ánd not' merely - contradictory or tending only to impeach the testimony of witnesses introduced at the former trial. And the petition must also state .the facts and circumstances under which the newly discovered evidence was made. Merrick v. Britton, 26 Ark. 496; Minkwitz v. Steen, 36 Ark. 260; Ward v. State, 85 Ark. 179; Smith v. State, 90 Ark. 435; Osborn v. State, 96 Ark. 400; Russell v. State, 97 Ark 92. See also, by analogy, Killian v. Killian, 98 Ark. 15; Stone v. Sewer Imp. Dist. No. 1, 107. Ark. 405.
Tested by tbe rules announced in tbe foregoing cases, we are of tbe opinion that tbe petition under consideration stated a cause of action.
3. It is stated in substance in tbe petition that tbe testimony of W. H. Cooper (appellant) at tbe former trial showed that be made an estimate for Herman Romunder in January, 1908, of what is known as tbe Myer’s Bend tract of land and that three or four months after this estimate was made be made another estimate for appellee Vaughan for which Vaughan agreed to pay him $1,000, as evidenced by a due-bill executed May 8, 1908, and that tbe testimony of Romunder given at tbe former trial corroborated this testimony of Cooper; but that since tbe former trial and judgment, and since tbe judgment of tbe Supreme Court was rendered, witness Romunder bad discovered a certain letter written by him to Cooper, dated tbe 1st of May, 1908, showing that he was mistaken when be testified at tbe former trial that Cooper was in bis employ in January, 1908, and made an estimate of tbe timber for him at that time, and that Romunder would now swear that W. H. Cooper only made one estimate of tbe timber and that said estimate was made in May, 1908, and that said estimate embraced not only tbe land lying east of tbe river in Woodruff: County, known as tbe Myer’s Bend land, but also tbe land lying west of tbe river in Prairie County, embracing in all about 1,900 acres.
Tbe petition further alleged that this evidence was newly discovered; that it was material; that petitioner used due diligence in preparing bis case, and tbe reason be gives for not discovering it before is that Romunder was a nonresident of the State; that in tbe taking of tbe depositions be requested of him to attach all correspondence and other instruments of writing relating to said deal, which tbe said Romunder promised to do, and that be made repeated demands for said correspondence, but that tbe said Romunder stated that be could not locate tbe same, etc.; that be was unable to procure any of said correspondence until recently; “that it was impossible for your petitioner to have known what was contained in the correspondence which passed between the said Herman Bomunder and the said W. H. Cooper, and that he did everything in his power to ascertain the nature and extent of the same and to have the same made a part of his deposition.”
We are of the opinion that the facts set forth in the petition are sufficient to show that the evidence was newly discovered; that it was material testimony, was not merely contradictory of the testimony of other witnesses or of the appellant, and that it was not merely cumulative, and that it is evidence which, if introduced at the former trial, would probably have changed the result, and that facts are stated showing the circumstances under which it was discovered and showing that due diligence was used to obtain it. The complaint was therefore sufficient in regard to the newly discovered evidence to state a cause of action under the rules declared in the above cases.
Without going into details in setting out and discussing the weight of the evidence pro and con, we are of the opinion that the testimony of Bomunder in support of the allegations of the petition fully warranted the finding of the court in setting aside the former judgment and granting the appellee a new trial. The newly discovered evidence of Bomunder tended strongly to support the allegations of the petition and was sufficient to warrant the court in finding that if the testimony of Bomunder given on the hearing of the petition for a new trial had been adduced at the former trial before the jury that the verdict most likely would have been different. In other words, this testimony tended to show that Bomunder was mistaken in his testimony given at the former hearing to the effect that in January, 1908, appellant had made an estimate for him; that, on the contrary, the estimate appellant made for him was in May, 1908. This testimony tended to support the contention of the appellee that appellant had not made an estimate for him (appellee) in May, 1908, for which he had agreed to pay Mm (appellant) $1,000, but that the dne-bill was executed for an entirely different purpose, and that the coiisideration for said due-bill wholly failed.
In Schofield Rolling Mill Co. v. State of Georgia, 54 Ga. 635, the court say: “When a witness for the plaintiff testifies from recollection capable of certain ascertainment by measurement, and after the trial by the jury swears that he was mistaken in the testimony, and the testimony is very material, and probably largely influenced the verdict, and the discrepancy between Ms testimony and the affidavit is very great, and said information having come to his knowledge since the trial, a new trial on the ground of newly discovered evidence will be granted. ’ ’
In 29 Cyc., at page 608, this rule is announced: “Where it is clear that a witness was mistaken in giving the only or controlling testimony to a material fact, or that the testimony of -witnesses on which the verdict proceeded was founded on particular circumstances which have been clearly falsified, a new trial should be granted. ’ ’
' This doctrine is apposite here to the alleged newly discovered evidence of Bomunder. No one can say that the jury was not probably influenced in making their verdict by the testimony of Bomunder on the former trial, and the allegations of the petition, supported by Ms testimony on this application for a new trial show that his former testimony was grounded upon facts about which he was mistaken, and of which, if he had been at the time cognizant, he would have given entirely different testimony.
" ' The most serious question in the case is as to whether the testimony on behalf of appellee was sufficient to show that he had used due diligence in the preparation of his case for the former trial. The testimony of appellee on this question is as follows:
Q. State what you did in preparation of the case?
A. I endeavored in every way I could at the first trial to get the memorandum from Miss Cannie. She told me at the time that she only kept a copy and she tried to find that hut couldn’t. Then I tried to get her to get it from the home office in Mishawaka and she couldn’t. I tried to get that or any other correspondence but she couldn’t get it. Afterwards I went to Mishawaka myself and Mr. Romunder’s office in South Bend, and all that I could find was that letter of May 1. I stayed several days and when I went to leavé I told them to have Mr. Romunder look through everything and if he could find anything at all to send it down to me. He never did send anything except what he sent with his deposition.
Q. What steps did you take towards procuring these papers with reference to Herman Romunder?
A. I telephoned Mrs. Johnson the day we took the deposition to ask Mr. Romunder to come down to the clerk’s office and he refused to do it. Then I told her to tell him that if he didn’t we would have a subpoena issued for him and he would have to come any way. We took his testimony, and in taking it Mr. Leach asked him to attach all these exhibits and I thought that he did, but we were never able to find it until recently.
Q. What was the relation at that time between you and Mr. Romunder ?
A. Well, we didn’t speak. The relations were strained. He would not speak. He did business at my bank until September, 1909, at which time we had a disagreement out of which the strained relations grew. This continued until last November.
Q. As soon as this strained relation was over with and he would speak to you, state what efforts you used to get hold of this testimony?
A. Well, at the time the case had been appealed to the Supreme Court we talked the matter over. 1 wanted to explain my position in the transaction; to explain any feeling he might have against me in regard to it. We discussed the testimony. I told him at the time that he was wrong and after the case was settled in the Supreme Court, immediately I discovered that I could get this testimony and I have left no stone unturned to get it. I have spent a good deal of money to get it. I made a trip to Mishawaka.
Q. At the time of the taking of the deposition did you know anything about the correspondence that had passed between Mr. Cooper and Mr. Romunder?
A. No, sir.
Q. Did you know that these exhibits attached to Mr. Romunder’s deposition were in existence?
A. No, sir; I did not.
The above was sufficient to show that appellee exercised due diligence to procure the alleged newly discovered testimony.
The judgment is therefore affirmed.