Affirming.
This is the second appeal of this case. The opinion on the first appeal decided February 21, 1933, is recorded in Whitmer Co. v. McClung, 247 Ky. 625, 57 S.W.2d 648, in which the history and facts of the case are set out, and it will not be necessary to repeat them in this opinion. Upon a return of this case, J.E. Williams, who was appellee in the former appeal and appellant in this appeal, filed his petition in the Warren circuit court under section 344 of the Civil Code of Practice asking that he be granted a new trial on the ground of newly discovered evidence.
It is disclosed by the record that a jury was impaneled to hear the evidence on the motion for a new trial. Section 344 of the Code provides that such application shall be summarily decided by the court. However, it was in the discretion of the chancellor to seek *Page 243 the advice of a jury, but, after hearing the evidence, the chancellor, being of the opinion that it was insufficient to warrant a new trial, peremptorily instructed the jury to find a verdict for appellee, which was the same in effect as to withdraw the question from the jury. This was a substantial compliance with the Code, supra. The chancellor dismissed the petition, and this appeal results.
The only question to be determined on this appeal is whether or not the evidence was sufficient to warrant the chancellor to grant a new trial.
We find that the same witnesses were used in the last trial as were used in the former trial, and their evidence is substantially the same as that in the former trial. However, there were a number of new witnesses introduced on the last trial, but their evidence pertains to substantially the same state of facts as testified to by other witnesses relating to conversations and statements with the agents of appellee relating to the letter alleged to have been written in October, 1929, purporting to notify appellee that appellant desired to withdraw and be released as surety on the bond of McClung, which evidence was merely accumulative on the same facts involved in the former trial, but no new facts were offered. At the close of the evidence the chancellor reached the conclusion that the evidence as a whole was substantially the same as that produced on the former trial. The chancellor, in summing up his conclusions, made the following statement:
"I have followed the evidence very closely today and have turned to the transcript made by the official stenographer on the trial a year ago [meaning the former trial], and I can see no difference in the testimony."
Upon examination and comparison by us of the evidence in the two trials, we concur with the chancellor in his conclusions.
Perceiving no error prejudicial to the substantial rights of appellant, the judgment is affirmed.