Kroger v. Ryan

Citations

• 83 Ohio St. (N.S.) 299

Syllabus

<p>Cumulative evidence — Is additional evidence of same kind — Will not sustain motion for new trial, zvhen — •New evidence, if competent, received, zvhen — Motion for new trial on ground of surprise — Mover must show use of due diligence against sur- . prise — Effect of negligence in ascertaining what witness could testify — Law of evidence.</p> <p>1. Cumulative evidence is additional evidence of the same kind to the same point. Therefore, where evidence offered on a motion for new trial is merely additional upon the same point upon which evidence was given by the party at the trial, such evidence will be rejected as cumulativé. But where the evidence thus offered is respecting a new and distinct fact, although it tends to establish the samé general result sought to be established by evidence given at the trial, such new evidence is not cumulative and, if otherwise competent, will be received.</p> <p>2. Where the ground for motion for new trial is surprise arising from the fact that the party’s witness testified upon the trial contrary to his expectation, the mover must show that he exercised proper diligence in the preparation of his case to prevent surprise, and also show that he used all means reasonably available to overcome the effect of the surprise. One of the means available is a motion addressed to the court for a continuance of the cause in order to afford the party opportunity to supply the evidence the failure to present which worked- the surprise.</p> <p>3. Where, upon the hearing of such a motion, it appeared that the mover failed to observe diligence in the preparation of his case for trial by neglecting to ascertain what his' witness really knew and could testify to, and also showed that the party did not at the time make known his surprise and ask for a continuance of the cause, but remained silent, letting the trial proceed, thus taking his chance of a favorable verdict upon the evidence as given, the motion was properly overruled.</p>