¶1(concurring.) This action was brought to replevy certain goods which had been attached by the sheriff under an attachment issued in favor of the defendant Meyer and against the party from whom the plaintiff derived title. The defendant, by his answer, denied ownership in the plaintiff, and set up his process as a justification. Upon the trial of the action evidence was introduced showing that the giving of a bill of sale of the property in question to the plaintiff was part of a transaction which was a scheme on the part of the defendant in the attachment to convey all her property in trust for creditors in a manner in violation of the laws of the state in reference to voluntary assignments for the benefit of creditors, and was therefore void; and, a motion having been made that the court direct a verdict in favor of the defendant, such motion was granted. The trial was in March. In the succeeding May the plaintiff made his motion for a new trial upon the ground of surprise and newly-discovered evidence. It seems to us that it took the plaintiff altogether too long to get surprised to justify the court in granting the motion for new trial upon that ground. If any surprise occurred at all, it occurred upon the trial, and it is admitted that the surprise consisted in the point which was taken upon the motion to direct a verdict by the defendant’s counsel. If the plaintiff desired then to be relieved from the condition in which he found himself, he should have moved for the withdrawal of a juror, and a postponement of the trial. But, after having been surprised at the position taken by defendant’s counsel, he could not speculate upon what the decision of the court was going to be upon that motion, and then claim, in addition to the surprise at the ground which the defendant’s counsel took, that he was surprised that the court decided the question according to law. It appears conclusively from the record that the plaintiff was surprised at the decision of the court upon the facts presented, and not in the slightest degree by the nature of the evidence. As already stated, it took him too long to get surprised, even at the decision of the court, to entitle him to any relief upon that ground.
¶2But it is urged that the motion is also based upon newly-discovered evidence. An examination of the record would seem to show that the principal ground for which a new trial is desired is to allow witnesses who have already been sworn to revise their testimony because, upon reflection and consideration and talking with other people, they have come to the conclusion that they were mistaken somewhat in the sequence of events. Ho new trial *870can be granted for any such purpose. It is true that this is fortified by the claim that certain other witnesses will swear to the same effect. But there is no evidence whatever but what this testimony was all within reach at the time of the trial, and could have been procured; and it was only because the counsel does not seem to have appreciated the tendency of the facts which were established that they were not produced. The motion for new trial was therefore properly denied, and the order should be affirmed, with $10 costs and disbursements.