80 N.W. 762 | N.D. | 1899
It appears by this record that a jury trial was had, and resulted in a verdict for the plaintiff; whereupon the defendant gave notice of intention to move for a new trial upon five grounds, none of which, however, are urged in this Court except the following : First, “newly-discovered evidence material to the party making application, which he could not, with reasonable diligence, have discovered and produced at the trial;” second, “insufficiency of the evidence to justify the verdict.” Upon the second ground, the motion was based upon the minutes of the court; the first ground was presented upon affidavits. The motion for a new trial was denied, and defendant has appealed from the order denying the same.
The action is brought to recover an alleged balance of $129.80 due plaintiff for threshing defendant’s grain in the year 1891. The only particular specified in which the evidence is claimed to be insufficient to justify the verdict is as follows, namely: “That the verdict herein is for the full amount claimed, whereas the defendant offered a receipt in payment of the account sued upon for forty ($40) dollars, admittedly executed by the plaintiff.” The receipt
The remaining ground of the motion for a new trial is that of newly-discovered evidence. This feature of fhe motion for a new trial was addressed to the sound judicial discretion of the trial court, and the action of the trial court upon the motion is conclusive upon this court, unless it appears that the discretion vested in the court below has been abused. See Barrett v. Railroad Co., 45 N. Y. 628. See, also, Hayne, New T. & App. § 87. The rule is inflexible that a new trial will not be granted upon the ground of newly-discovered evidence unless the evidence so discovered is of such a character as will probably change the result. See Braithwaite v. Aiken, 2 N. D. 57-62, 49 N. W. Rep. 419. Applications for new trials on this ground are looked upon with distrust and disfavor. Id. See Baker v. Joseph, 16 Cal. 173; Arnold v. Skaggs, 35 Cal. 684. The Supreme Court of Minnesota said: “The defeated party is usually apt to think that he could make a stronger case on another trial, and, in order that there may be an end of litigation, new trials should be very cautiously and sparingly granted on the ground of newly-discovered evidence. Nelson v. Carlson, 54 Minn. 94, 55 N. W. Rep. 821. We call attention to these well-settled principles governing applications for new trials," when made upon the ground of newly-discovered evidence, because we consider them directly in point, as applied to the case at bar.
We have attentively considered the numerous array of affidavits presented by the defendant in support of this feature of his motion,