The opinion of the court was delivered by
Gilkeson, P. J. :The only error assigned in this case which we will notice is that alleged to have been committed by the trial court in overruling the motion for a new trial. The evidence in this case is voluminous, and in some instances, though few, and those in minor matters, contradictory ; but since the trial court has passed upon this evidence, and the findings of fact are all supported by a preponderance of the testimony, this court will not disturb them.
The motion filed for a new trial is based upon eight grounds, all of which, however, have been abandoned in this court by the plaintiff .in error, except the seventh, viz. : “Newly-discovered evidence material for this defendant, which he could not with reasonable diligence have discovered and proven at the trial.”
*726In support of this motion he filed his affidavit, stating that
“he is the defendant in the above-entitled action; that when this cause was commenced by service of process upon him affiant made an examination of the plaintiff’s petition filed here, and from such examination, aided by the advice of his attorney, determined what evidence would be necessary to meet the charges set forth in said petition, and prepared his case accordingly ; that upon the trial of this cause before the court, certain evidence was introduced by. the plaintiff over the objection of this defendant, which evidence affiant is informed and believes was entirely inadmissible under the plaintiff’s petition, as is evidenced by the fact that after the said trial plaintiff was compelled to amend his petition to conform to the facts as proven thereby, and at the trial, while defendant was not only wholly unprepared to meet the same, but was wholly unadvised that any attempt would be made to introduce the same ; that after the trial of this cause as aforesaid, this affiant was for the first time informed that Mr. Gillett, Mr. Watkins, and other persons, whose testimony or affidavits are hereto attached, were in possession of the facts as set forth in their affidavits ; that immediately upon receiving such information, affiant called upon such persons, and after having obtained from them their knowledge of the case soon .afterward .procured such affidavits; that the testimony of said parties is material to the proper presentation of this case by affiant, and that affiant could not with reasonable diligence have procured such testimony in time for the last trial; that affiant had procured all the evidence he thought necessary under the allegations of said petition, and he had not the slightest information from any source that said witnesses had any knowledge of any facts needed to .be proven on said trial;, that if affiant be granted a new trial herein, he can procure such evidence to be used on such trial, and then be enabled to have justice done him ; and in support thereof has filed the aflfi*727davits of I. S. Watkins, James L. Rankin, diaries F. Bridge, James Gillett, and I. T. Lockard.”
After a careful examination of the testimony produced at the trial, we do not think that the court erred in overruling the motion for a new trial. At the time the amendment was made to the petition the defendant did not ask for time to meet the issues as then formed, and in fact the amendment did not substantially change the issues. The most that could be said was, that one portion thereof explained the issues as they stood prior to the amendment while the other portion merely enlarged the plaintiff’s claim for damages by setting up additional items of damage sustained. The affidavit of the defendant is very guarded in its terms, but shows, we think, conclusively, that if he had deemed the testimony then, which he now thinks, important, he would and could have produced it, and that he did produce all that he deemed necessary. While the affidavits of Watkins, Rankin, Gillett, and Lockard, might in some minor details contradict the testimony of the plaintiff, yet all of the testimony set forth in their affidavits is in reference to the transaction to which the defendant was a party, and each and every one of them testified that he was present and took part therein. The testimony of Mr. Bridge is very cumulative as to rents received, while the testimony of Mary Jones, at most, would but show that the plaintiff himself had removed from the premises some shubbery and vines. How the testimony of any of these witnesses, with the exception of Mary Jones, could be called newly discovered, we are at a loss to know; and from the affidavits of these parties it is conclusively shown that the defendant must have known and did know of all of this evidence at the time of the trial, nor does he show any diligence having been *728exercised by him in order to obtain these witnesses, and from aught the record discloses each and every one of them might have been brought into court by a subpoena issued during the trial. There is no allegation that these parties resided beyond the jurisdiction of the court,' and from their own affidavits we learn that they resided within the city of Topeka. It is true he states that he could not with reasonable diligence have procured such testimony in time for the trial, and this is the only allegation with reference to diligence. This is not sufficient. The rule is too well established in this state to warrant us in citing authorities thereon, that before a new trial will be granted on the ground of newly-discovered evidence due diligence prior to the trial in respect to such evidence must be shown ; and to this end it is not sufficient for a moving party to merely allege that he used due diligence, but he must state the facts so that the court can say that there was due diligence. In fact, the most that can be said of this application is, that he might on another trial produce more testimony.
The judgment in this case will therefore be affirmed.
All the Judges concurring.