Heilner v. Brown

12 P. 903 | Idaho | 1887

HAYS, C. J.

This is an appeal from an order granting a new trial. The grounds of the motion for a new trial were irregularity in the proceedings of the court, newly discovered evidence, insufficiency of the evidence, and errors inlaw. The appellants contend that the affidavit of J. Durkheimer, produced and read in the court below on the motion for a new trial on the ground of newly discovered evidence, was insufficient and void on account of not having a proper jurat thereon. It was read and treated as an affidavit in the court below without objection, and counsel cannot be heard to raise such an objection for the first time in this court. If it was defective, they should have objected to it in the court below, and, if overruled, they could have excepted, and been heard here. While courts look with disfavor on motions for new trial, on the ground of newly discovered evidence, yet the court below must be clothed with large discretionary powers in such cases, and, if there is no abuse of that discretion, the appellate court will not interfere. We find no abuse of that discretion in this case, but think the order a very proper one. This being decisive of the question, other points discussed will not be considered.

The order is affirmed.

Buck and Broderick, JJ., concurring.