This is a proceeding in error to reverse the judgment of the district court in overruling a motion for a new trial, filed nearly sixty days after the trial, because of misconduct of certain members of the jury and newly-discovered evidence. A motion for a new trial because of the misconduct of the jury should be filed at the term at which the cause is tried and within three days after the verdict or decision was rendered, unless unavoidably prevented. (Gen. Stat. 1901, §4756.) There is no showing that the plaintiff was unavoidably prevented from filing hi& motion within the time prescribed by the statute.

The evidence introduced at the trial by the plaintiff is not *859before this court, and it is impossible to say that tbe newly-discovered evidence was not merely cumulative. This court, in Kirby v. Childs, 10 Kan. 639, said:

“ Where a motion for a new trial is made on the ground of newly-discovered evidence, and none of the testimony offered on the trial is preserved, it is impossible for this court to say that such newly-discovered evidence is not merely cumulative.” (See, also, Clark v. Hall, 10 Kan. 80.)

The judgment is affirmed.