delivered the opinion of the court.
It is contended by counsel for appellant that the verdict is not supported by the evidence. In this behalf it is claimed, first, that appellee had no right to the property at the time of the seizure upon the attachment writ, because his right by purchase of the mortgage accrued only after levy, although before sale; and, second, because, it is claimed, there is no sufficient showing that appellant authorized the sale under the attachment proceeding. It is also urged that the trial court erred in admitting a schedule of property made, by Arnold, Jr., in the attachment suit, and erred in refusing to permit cross-examination of appellee’s witnesses. It is also urged that a new trial should have been granted on the ground of newly-discovered evidence.
The evidence shows that under the terms of the chattel mortgage, appellee, the then owner thereof, was entitled to immediate possession on December 5, 1896, the date of the sale. No question is raised as to demand by counsel for appellant. • The evidence is sufficient to warrant the finding by the jury that the sale was authorized and directed by appellant.
The schedule of his property filed by Arnold, Jr., in the attachment suit, was not an item of evidence material to the issues tried in this cause; but it was a part of the files of the case in the attachment proceeding, all of which were admitted in evidence, and some of which were material.
While the schedule had no bearing upon the issues here, we are not prepared to say that its admission could have been prejudicial to appellant.
The brief of counsel for appellant fails to point out any exclusion of evidence upon cross-examination to which he excepted at the trial. Nor are we able to find in the abstract any such exceptions.
The newly-discovered evidence relied upon as ground for a new trial .relates solely to the ownership by appellee of the chattel mortgage. Due exercise of diligence would have required the attendance of appellant or his counsel at the trial of this cause before the justice of the peace, where the importance, if any, of Lynch’s testimony would have been discovered and between the time of that trial and the trial, in the County Court there, was ample .opportunity to have obtained the evidence. Mo effort whatever is shown in this direction until after the trial in the County "Court, and the diligence then exercised came too late.
No other question is presented by the briefs of counsel. The judgment is affirmed.