A juror's statements made after the trial in the presence of defendant's attorney, tending to show that he was an incompetent juror, cannot be shown by the attorney's testimony.2 The statements made by jurymen after the verdict has been rendered, of what was said to them during the trial, is hearsay, and, when the testimony of the jurymen themselves is not offered, should not be considered.3 Striking of scandalous and impertinent affidavits offered in support of a motion for a new trial is not error.* Where a motion for a new trial, for misconduct of the prevailing party, is not supported by affidavits showing the alleged charge to be true, a denial thereof is proper.5 An affidavit for a new trial, alleging disqualification of a juror because of an expression of opinion as to the merits of the case before trial, is insufficient if it fail to show that the rights of the mover have been prejudiced, and that he did not know of the expression of opinion when the jury was impaneled, and have full opportunity to challenge the juror for cause or peremptorily. AFFIDAVIT ACCOMPANYING MOTION FOR NEW TRIAL (Caption.) State of Oklahoma, County of SS.: E. F., of lawful age, being first duly sworn, upon oath says: That he is the owner and manager of the Café in the city of county, Oklahoma; that he is acquainted with A. B., the plaintiff in the above entitled action, and is acquainted with G. H., M. N., and X. Y., who were jurors in the trial of the above entitled cause; that he was also a juror in said cause; that after the jury for the trial of said cause was impaneled, and during the noon recess, on the 19, when said cause was on day of 2 Chicago, R. I. & P. Ry. Co. v. Brown, 55 Okl. 173, 154 P. 1161. 3 Sharpe v. Williams, 20 P. 497, 41 Kan. 56. 4 Schriber v. Maxwell, 140 P. 865, 92 Kan. 306, judgment modified on rehearing 144 P. 191, 93 Kan. 211. Atchison, T. & S. F. R. Co. v. Rowan, 39 P. 1010, 55 Kan. 270; Bell v. Day, 57 P. 1054, 9 Kan. App. 111. Berry v. Smith, 35 P. 576, 2 Okl. 345. trial, the said plaintiff, A. B., took the said jurors G. H. and M. N. to said Café, and that after arriving there the said juror X. Y. entered, and that said plaintiff A. B., and said jurors, G. H., M. N., and X. Y., all had dinner together, and that the said plaintiff, A. B., paid for the dinners of all of said jurors. (Jurat.) § 1516. E. F. As to newly discovered evidence-Form The statute requiring that a motion for new trial for newly discovered evidence be verified by affidavit, is meant to secure a prima facie case, and, where a motion was not verified and affidavits of newly discovered witnesses were not attached or filed and made a part thereof, the submission of the oral testimony of such witnesses on the hearing of the motion and its embodiment in the case-made was not a compliance with the statute." An affidavit made on information and belief, and stating no facts within affiant's knowledge, is insufficient to require a new trial for newly discovered documentary evidence in possession of the adverse party, for the statute requires one seeking a new trial for newly discovered documentary evidence in possession of the adverse party to produce such evidence as is available relative to the existence and contents of the document. 8 A motion for a new trial on the ground of newly discovered evidence should contain the affidavit of the new witness, or satisfactorily account for its absence." On the hearing of the motion the court may properly consider affidavits for and against the same.10 The affidavits must contain a statement of the facts showing diligence.11 7 Eskridge v. Taylor, 75 Okl. 139, 182 P. 516; Dodson & Williams v. Parsons, 62 Okl. 298, 162 P. 1090. 8 Cowley County Nat. Bank v. Rawlins-Dobbs Elevator Co., 152 P. 647, 96 Kan. 461. Elliott v. Martin, 71 P. 756, 27 Mont. 519; Huster v. Wynn, 58 P. 736, 8 Okl. 569; McCants v. Thompson, 115 P. 600, 27 Okl. 706; Wilkes v. Wolback, 2 P. 50S, 30 Kan. 375; Pinschower v. Hanks, 1 P. 454, 18 Nev. 99; Twine v. Kilgore, 39 P. 388, 3 Okl. 640. Newly discovered evidence set out in conflicting affidavits on a motion for a new trial held insufficient to warrant a new trial. Wilson v. Lane, 144 P. 230, 93 Kan. 178. 10 Culp v. Mulvane, 71 P. 273, 66 Kan. 143. 11 B. S. Flersheim Mercantile Co. v. Gillespie, 77 P. 183, 14 Okl. 143. AFFIDAVIT AS TO NEWLY DISCOVERED EVIDENCE ACCOMPANYING MOTION FOR A NEW TRIAL That said E. F. A. B., of lawful age, being first duly sworn, upon oath says: That he is the plaintiff in the above entitled action. That the verdict in this case was secured in part by the false and untrue testimony of defendant that (setting forth facts testified to by defendant). That since the trial of said cause, and on 19, plaintiff has discovered that he can prove that (stating newly discovered evidence) by the testimony of E. F., who resides at has assured this plaintiff that if a new trial is granted he would attend and testify as follows: (Setting forth same.) That all of the above facts are material and important to plaintiff's case, and all of the above testimony is very material and important facts to establish plaintiff's claim. That said newly discovered evidence is not merely cumulative or corroborative, but is new and important and material, and affiant believes that it would be likely to change the verdict of the jury and the result of a new trial. That before the trial of this cause great diligence was used by plaintiff to discover this and any other important testimony material to its case. That prior to said trial plaintiff sent his agent to the vicinity of where said E. F. lived in county, during 19—, and said agent, one G. H., there made search for all material testimony in the case. That by reason of the natural reticence of people, including the witness above named, and his desire to avoid being brought into court as a witness, said agent was not able to learn of the knowledge of the above facts possessed by said witness. But after the trial of this case said witness, learning that injustice had been done the plaintiff by the verdict, has finally informed the plaintiff of his knowledge of the above facts, and of his willingness to testify to said facts as above stated. By reason of the inability of the plaintiff to discover the above testimony before said trial, and before the adjournment of said term of court, great injustice has been done plaintiff by said verdict. If a new trial is granted herein, the testimony of the above named witness will be procured upon the points above mentioned for use on the further trial of this cause. Wherefore plaintiff prays that the court will grant a new trial herein to the end that justice may be done. (Jurat.) § 1517. Transcript of evidence A. B. Statutes providing that, where the ground for a motion for new trial is the exclusion of evidence, such evidence shall be produced at hearing do not apply, where documents examined and excluded were before the court and hence there was no necessity for their production on the hearing of motion. 12 Likewise such statute does not apply where the evidence was admitted and afterwards withdrawn.13 A motion for a new trial for newly discovered evidence is properly denied where none of the testimony offered on the trial is preserved.14 § 1518. Amendment After the expiration of the three days allowed, a motion for a new trial may be amended to clarify the grounds originally set up, but not to set up new and independent grounds.15 § 1519. Abandonment of motion A litigant may successfully abandon a motion for new trial. Where a jury returns a verdict in a civil action in favor of plaintiff, and also returns certain findings of fact, and plaintiff files no motion for a new trial, but defendant makes a motion for judgment on the special findings, which is overruled by the trial court, and also files a motion for a new trial, which, before action is taken thereon, he asks to withdraw, and, when this is refused, in open court waives all errors committed on the trial against him as alleged in the motion for a new trial, and thereafter plaintiff confesses the grounds. 12 Security State Bank of Wichita v. Seaunier, 104 Kan. 7, 178 P. 239. 13 Cornwell v. Moss, 147 P. 824, 95 Kan. 229. 14 Hopkins v. Watson, 74 P. 233, 67 Kan. 858, 15 Wiggins v. Jackson, 52 Okl. 723, 153 P. 879; Rogers v. Quabner, 137 P. 361, 41 Okl. 107; Rice v. Folsom, 122 P. 236, 32 Okl. 496; Perry v. Eaves, 45 P. 718, 4 Kan. App. 26. Defendant filed his motion for a new trial within the three days allowed by statute, but nearly two months thereafter he asked leave of the court to amend his motion by adding thereto, "Errors of law occurring at the trial, and excepted to by the defendant," which leave was refused by the court. Held not error. Culp v. Steere, 28 P. 987, 47 Kan. 746. of the motion which have been waived by defendant, an order granting a new trial must be reversed, it not appearing from the record that there was any sufficient reason for granting a new trial.1 § 1520. Order-Form Upon a motion for new trial on several grounds, the trial court, in sustaining the motion, should state the specifications which are upheld and those which are overruled.1 Where a motion based on several grounds was sustained on one of them and "no other," it was an explicit overruling of the motion on all other grounds.18 Where the amount of a verdict is manifestly too small, and the deficiency can be ascertained by adding the agreed rate of interest on a note, it is not error, as against the plaintiff, for the court to refuse a new trial and correct the mistake by rendering the judg ment for the proper amount in addition to the verdict.19 Where the court deems the damages excessive, it may impose the alternative of accepting a reduction or submitting to a new trial; but rendering judgment for a reduced amount if the successful party objects is error as to both parties.20 Where demurrer to the evidence of plaintiff has been overruled. and the trial proceeds to judgment in his favor, the court cannot, on a motion for a new trial, set aside the verdict and judgment and sustain a demurrer to the evidence and enter a judgment against plaintiff for costs, unless it appears that the deficiency in the evidence cannot be supplied by plaintiff.21 A statement of an order granting a new trial, that the sole ground of the ruling was that a finding was not sustained by sufficient evidence, does not imply that the court would have approved the find 16 Atchison, T. & S. F. R. Co. v. Brown, 32 P. 630, 51 Kan, 6. 17 Bourquin v. Missouri Pac. Ry. Co., 127 P. 770, 88 Kan. 183. 20 Atchison, T. & S. F. Ry. Co. v. Cogswell, 99 P. 923, 23 Okl. 181, 20 L. R. A. (N. S.) 837. Where a motion for a new trial has been pending for several years, and there is no record or memorandum to indicate that it has ever been acted upon by the court, oral evidence is insufficient on which to base an entry nune pro tunc. Boynton v. Crockett, 69 P. 869, 12 Okl. 57. 21 Thomas v. Kansas City Elevated Ry. Co., 90 P. 816, 76 Kan. 141. |