Carson v. Cross

Plaintiff appeals, and assigns for error the action of the District Court in adopting the report of the referee appointed to hear and determine all matters involved in a case of mutual accounts. First, it is claimed that the finding of the referee was against the evidence: the testimony, however, instead of being conclusive against the finding, decidedly preponderates in favor of it. And, therefore, treating the finding as a special verdict, we have no right to set it aside.

*464The second point is, that plaintiff showed that he had, since the hearing, discovered testimony which was material and would change the result. A conclusive answer to this is that he does not show what diligence he used .to obtain this testimony. The witness, whose affidavit ■ accompanies the motion to set aside the report, and who is relied upon to change the result on a second hearing, was subpenáed by the plaintiff and present at the first trial. A general allegation that a party used due diligence to obtain testimony is not sufficient. He must show what he did do, that the Court may judge of its sufficiency. And a very strong case indeed should be made to justify a new trial on this ground when the witness relied upon was subpenaed and in Court. We have no such case before us, nor one approximating it. (1 Iowá, 216.)

Affirmed.