As many, if not more witnesses, tóstified that the colt in controversy belonged to appellant, as testified that it was the property of Mrs. Lux, formerly Mrs-Montgomery, the prosecutrix.

Appellant made an application for a continuance in order to obtain the testimony of Bill Williams, a brother of the prosecutrix, and who had lived with the prosecutrix for eight years, and knew, handled, and managed her horse property. The application alleged that he, Williams, had fed and knew the colt well, and would testify it was not his sister’s, but defendant’s colt. It was in proof by the witness Beard that after he bought the colt of defendant, he, witness, branded it, and that the witness Williams was present at the time, and made no claim to it as belonging to his sister, Mrs. Lux. Mrs. Lux testified that her brother had lived with her, knew the colt, and had said nothing to her about having seen it at Beard’s.

Considering the conflict in the testimony, the number of witnesses who testified that the colt fiyas defendant’s, the fact that defendant always openly and publicly claimed it as his, and that the parties at one time agreed to arbitrate their rights to it, in fact all the testimony taken together, and the evidence of Bill Williams, the brother of the prosecutrix, became most material and most important to defendant; and, even if we concede that the application was properly overruled in the first instance for want of diligence, we think it should have had controlling weight when it came to be considered a second time in connection with the evidence, on the defendant’s motion for a new trial.

Under the circumstances shown we are of opinion, for the reasons stated, that it was error to overrule the mqtion for a new trial. Wherefore the judgment is reversed and cause remanded.

Reversed and remanded.