Gilbreath v. Bain

The only question presented and argued by counsel for appellant on this appeal relates to the action of the trial court in overruling defendant’s motion for a new trial, based upon the ground of newly discovered evidence. One of the prerequisites to a favorable consideration of such motion upon this ground is that it be made to appear -due diligence had been unavailingly used by the movant prior to the trial. McLeod v. Shelly Mfg. Co., 108 Ala. 81, 19 So. 326; Fries v. Acme White Lead, etc., Wks., 201 Ala. 613, 79 So. 45; Thomas v. Johnson, 208 Ala. 701, 94 So. 922.

There is no pretense of…