Brooks

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

The affidavit on which the motion for a new trial, on the ground of surprise and newly discovered evidence, was based, was insufficient.

From aught that appears to the contrary, the cause was noticed for trial in due form, and at a proper time, and was *114 placed upon the calendar for the trial of causes, and called on for hearing in its regular order; and while there is nothing to show that the defendant was taken by surprise, except his own naked and unsupported allegation, it would seem that the exercise of the slightest degree of prudence on the part of himself or his attorney, could have guarded against it.

The affidavit is equally insufficient to sustain the other ground upon which a new trial was asked. It does not show that the evidence claimed to be newly discovered, was discovered since the trial, nor in what particular such evidence was material, nor what important fact it would tend to establish, nor that due diligence was used, nor why it could not with reasonable diligence have been discovered and produced at the trial of the cause; all of which facts should have been affirmatively shown by the…