are commenced, and before the exceptions are recorded. [51 v. 57, 296; S. & C. 1030.]

CHAPTER V.

NEW TRIAL.

? 5305. Causes for which a new trial will be granted. A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by a jury, a report of a referee or master, or a decision by the court; and the former verdict, report, or decision, shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party :

1. Irregularity in the proceedings of the court, jury, referee, master, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial.

2. Misconduct of the jury or prevailing party.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Excessive damages, appearing to have been given under the influence of passion or prejudice.

5. Error in the assessment of the amount of recovery, whether too large, or too small, when the action is upon a contract, or for the injury or detention of property.

6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law.

7. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered, and produced at the trial.

8. Error of law occurring at the trial, and excepted to by the party making the application. [51 v. 57, ? 297; S. & C. 1030.]

1. Irregularities, etc. It has been held not good ground for a new trial that papers not in the case were permitted to be taken by the jury in their retirement, where no prejudice could have resulted therefrom, 11 Bull 166; where a paper containing & computation of interest went to the jury, with other papers in the case, when it did not appear by whom it was given, and where no fraudulent intent was shown, 2 O. S. 431; because computations of an engineer were allowed to be given to the jury in a proceeding to appropriate private property, 32 O. S. 215; because the judge presiding at the trial of a prisoner for murder

sent to the jury on their request, in the absence of the prisoner, a copy of the statutes calling their attention to the sections relating to homicide, 11 O. S. 114; because the bailiff went to the jury room after the retirement of the jury, where it was not shown that the jury were influenced by his presence, 4 Bull 576, 578. "It is unnecessary to determine whether the act of the sheriff and his deputy, who had testified in the cause on behalf of the state, in remaining in the room where the jury were deliberating, affords of itself ground of reversal, but we all unite in condemning such acts," 36 O. S. 195, 200, 201. Comments of an attorney in the case have been held not good ground, 3 Bull 431; 6 Bull 752; 18 O. S. 366, or that an attorney concealed facts from a witness, 39 O. S. 37. Communications with jurors by the court after the case has been submitted to them, and while they have it under consideration, except in open court. furnish ground for a new trial, 1 Pick. 242; 13 Johns. 487. Misconduct of witnesses for state, 15 Bull 238.

2. Misconduct of jury. It has been held good ground for a new trial that jurors conversed on the subject of the case, while in their room, with persons on the street, 2 O. S. 54; (the rule is that such conversations as have a tendency to influence the verdict are sufficient to authorize the granting of a new trial, 11 Bull 278, citing 41 Conn. 269; 62 Me. 302; 36 N. J. L. 24; but where they have no relevancy to the case or consist of statements made by the jurors themselves, they will not have this effect, 11 Bull 278, citing 3 Neb. 357; 26 Ark. 323; 13 Conn. 445); because a juror asked favors of plaintiff during the trial, 5 Bull 29; because jurors in a criminal case, without the knowledge of the court or prisoner, obtained part of the charge of the court as printed in a newspaper and used it in their deliberations, 2 Ó. S. 54; because one juror personated another in a criminal case, 34 O. S. 228, disclosed facts to fellow-jurors within his own knowledge contradicting important testimony, 42 O. S. 426; because the jury read depositions rejected by the court, 1 D. 21, made experiments by imitating signature during trial of action on note where defense was forgery, 2 Clev. R. 164; because a juror expressed his opinion before the trial of a criminal case, 19 O. 198, but not where evidence of the fact was conflicting, 23 O. S. 146, or not supported by affidavit that the fact was unknown, 4 O. S. 234; because the jury altered their verdict after it was sealed, 8 O. 405; because a juror separated from his fellows after final submission of a criminal case, and before verdict, and drank intoxicating liquors, 22 O. S. 486. It has been held not good ground for a new trial that jurors separated in a civil case after having agreed on their verdict, 3 O. 53; sealed verdict, 8 0. 405; where the separation was induced by an alarm of fire in the vicinity, 33 Ó. S. 77; because a juror drank intoxicating liquor during an adjournment, unless there was reason to suspect it may have had some influence on the final result, 32 O. S. 328; because a juror was asleep while one of the witnesses was testifying and one of the attorneys making his argument, the court's attention not being called to the fact, 12 Neb. 5; because of improper and officious interference by the officer having the jury in charge, unless it led to misbehavior on the part of the jury, 10 O. 459; see 36 O. S. 195, 200; 4 Bull 576; because a juror viewed the premises alone, 2 C. S. C. R. 132; said, during the progress of the case, that his opinion was formed, 12 Bull 182;

expressed a hypothetical opinion before trial in a criminal case as to guilt or innocence of accused, 10 O. S. 599; inquired of an attorney, not in the case, how he was to get along without certain papers, and was told to do the best he could, that he, the attorney, could give him no advice, and that the juror could send up and have the court advise them, 33 O. S. 77; that a witness called by the jury repeated his testimony in the jury-room, T. 274. Affidavits of jurors are not admissible to impeach their verdict, 10 O. 459, unless other testimony is first given. 2 O. S. 54; 42 O. S. 426. Affidavits stating that they misunderstood the charge will not be received on motion to set aside the verdict, 8 O. S. 384. Misconduct of prevailing party. Any attempt on the part of prevailing party, or his attorney in the case, to corrupt a juror, though it is not shown to be successful, is a good ground for a new trial, 32 O. S. 328. Where it appears that, during the progress of a trial, the prevailing party, or his attorney, has furnished intoxicating liquors to a juror, it is a good ground for a new trial, unless it was clearly shown that it was not intended to influence his action in the case, and that it had no influence on his mind as a juror, Id.; see 5 Bull 875. When the prevailing party testifies on the trial in his own behalf, and, upon crossexamination, refuses to answer, and the trial proceeds, such refusal is misconduct for which the verdict should be set aside and a new trial granted, 4 W. L. M. 159.

3. Accident. Surprise. The submission of a case for trial by the attorney without notice to the client, is no ground for a new trial, though the client is thereby deprived of furnishing additional testimony, 1 D. 411. The surprise of a party arising from unexpected statements of a witness who had been twice before examined without disclosing facts to which he testifies, is not sufficient ground for a new trial when the verdict is justified by other evidence and substantial justice is done, 2 O. S. 588. Ă motion for a new trial on the ground that counsel were led by a misapprehension of the law to abstain from offering evidence pertinent to the issues made therein, is addressed to the sound discretion of the court, and its action thereon is not subject to review, 16 O. S. 88. See generally, 2 O. S. 164; 2 Bull 113; 5 Bull 353; 1 Clev. R. 178. Defendant in default because papers were taken out by plaintiff, 1 Clev. R. 194; entering judgment in violation of agreement, 4 Bull 289.

4. Excessive damages. In actions for slander and libel, a new trial will not be granted unless the amount is so large as to show partiality, corruption, or improper influence of the jury, 13 O. 365; 14 0.418. The party in whose favor an excessive amount is found may remit the excess, and a motion for a new trial on that ground will be overruled, 9 O. S. 72; 28 O. S. 175; 2 D. 463. The court may make a remittitur of the excess a condition of refusing to grant a new trial, 22 O. S. 446. A corporation, by the malicious misconduct of its servants or agents acting within the scope of their employment, may render itself liable to exemplary or punitive damages; but, this doctrine being capable of great practical abuse, the giving it in a charge to the jury in a case clearly not warranting its application, tends to mislead them; and where, in such a case, a verdict for damages is obviously exorbitant, it is error in the court to refuse to set it aside, and award a new trial, 19 O. S. 157.

5. Error in assessment of amount of recovery. Where in a suit

for foreclosure of a mortgage an excessive amount is found due by reason of an erroneous method of calculating interest, and this is not discovered until after the term, a petition for a new trial lies under this section, 6 Bull 755.

6. Verdict contrary to law, etc. The verdict must be clearly against the evidence to warrant its being set aside, 6 O. 456; 4 O. S. 566; 12 O. S. 146; 5 O. S. 266; 35 O. S. 370; 18 O. S. 134; 35 0. S. 253. A mere difference of opinion between the court and jury is not a sufficient ground, 8 0.507; 5 O. S. 266; 4 O. S. 566.

7. Newly discovered evidence. The newly discovered evidence must require a different verdict, 4 0.5; 24 O. S. 133. It must not be cumulative, 11 O. 147; 10 O. S. 598; 1 D. 115; 15 0. 313. The evidence must be such as could not with reasonable diligence have been discovered and produced at the trial, 20 O. S. 150, 163. It is not a test that evidence is cumulative, that affidavits in support of it do not go to some new ground of defense, 2 C. S. C. R. 18. Evidence discovered after motion made is admissible, 35 O. S. 177. Error does not lie to overruling motion on this ground under S. & S. 1155; 26 O. S. 1. Made at trial term, 2 C. C. R. 541.

8. Error of law. The exception must be made at the time the decision is rendered, 10 O. S. 223. A new trial will be granted when competent evidence has been rejected which would conduce to prove the issue, 6 O. 87, 91; where from the whole record the court is of opinion that the direction of the judge, though in terms correct, might have been misunderstood by the jury, 12 O. S. 312; where improper evidence is admitted, and of such a character that it might have influenced the jury, 8 O. 81, 84. A new trial will not be granted because the court gave a wrong reason for rightly rejecting testimony, 4 0.5; because improper evidence was admitted when it was merely cumulative, and when the jury must have found the facts as they did without it, 3 0.107; because the court commented on the evidence in its charge to the jury, 6 O. 164; erred as to evidence which could not change the result, 6 O. 87, or in its charge as to the law, 1 0. 330, 349; 5 O. S. 375, 385. A new trial will not be granted on a technical ground, or to let in a technical defense, where substantial justice is done by the verdict, 1 O. 357; 50. 109. If the ground of the motion is, that improper testimony was admitted, such fact must be made distinctly to appear, 15 0.735. See, generally, 40 O. S. 339; 2 C. C. R. 51.

5306. For what causes new trial will not be granted. A new trial shall not be granted on account of the smallness of damages, in an action for an injury to the person or reputation, nor in any other action where the damages equal the actual pecuniary injury sustained. [51 v, 57, 2 298; S. & C. 1032.]

See 1 H. 438.

25307. When application for new trial to be made. The application for a new trial must be made at the term the verdict, report, or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered, and produced at

the trial, shall be made within three days after the verdict or decision is rendered, unless such party is unavoidably prevented from filing the same within such time. [51 v. 57, § 299; S. & C. 1033.]

The motion must be made within three days after the verdict, etc., 21 O. S. 637, or it is of no avail, 3 Neb. 446; 6 Neb. 532. When a party has filed a motion for a new trial, and afterwards withdraws it and prays the court to proceed to enter up judgment, he can not of right file a second motion, although the three days after the rendition of the judgment have not expired, 2 W. L. M. 554; see 2 C. C. R. 541; 3 Id. 581.

25308. How application for new trial made. The application must be made by motion, upon written grounds, filed at the time of making the motion; the causes enumerated in subdivisions two, three, and seven, of ? 5305, must be sustained by affidavits or depositions, showing their truth, and may be controverted by affidavits or depositions, and for this purpose depositions may also be taken in the county where the action is pending. [77 v. 48; 51 v. 57, 2 300; 76 v. 99, 4; S. & C. 1033.]

The motion may be made by both parties, 26 O. S. 632. The grounds must be stated in the motion, 15 O. S. 211, 215.

25309. Application for new trial after term. When the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after, the term at which the verdict, report, or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after the discovery; whereupon a summons shall issue, and be returnable and served, or publication made, as prescribed in ? 5050; the facts stated in the petition shall be considered as denied without answer; if the service be complete in vacation, the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty days from such service; and the case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken, as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered. [51 v. 57, 301; S. & C. 1033.]

See 35 O. S. 177. Allegations must be affirmatively stated, and not upon information, 7 Neb. 189; the petition is demurrable, Id. A mere allegation that the error was not discovered until after the term at which the judgment was rendered, where two terms have passed since then, is bad on demurrer, 6 Bull 755.