Lead Opinion

The facts sufficiently appear in the opinions. This is an appeal from a judgment and order denying a motion for new trial in a divorce proceeding, taken upon two grounds: First, error in law, in refusing to admit evidence *Page 155 of a conversation between the witness and defendant relative to her physical condition upon a certain day; and, second, that the judgment and decision are contrary to and unsupported by the evidence. Upon the first ground, the excluded testimony was hearsay. Upon the second ground, the evidence may be susceptible of a different construction; but the district court, having an opportunity to observe the demeanor of the witness, and to estimate the weight to be attached to the testimony, denied the motion, and its discretion will not be disturbed by this court. Upon the motion an affidavit of respondent was filed, showing that he had given certain testimony at the trial which he believed at the time to be true, but upon reflection, after an interval of several months, now thinks may be unjust to defendant in several particulars. Conceding the facts stated in the affidavit to be true, there still remains enough in the testimony taken at the trial to support the judgment. Judgment and order affirmed.

TALBOT, J.: I concur.

Addendum

Plaintiff recovered judgment against defendant, dissolving the bonds of matrimony between them. Defendant moved for a new trial on the grounds of newly discovered evidence.

The question for determination is, is the newly discovered evidence sufficient to entitle defendant to a new trial? I think it is. The evidence on which the judgment of divorce was granted was mainly that of the plaintiff. In support of her motion for a new trial, defendant filed an affidavit of the plaintiff, in which he says he was mistaken in the testimony that he gave at the trial; specifying the particulars in which he was mistaken.

The particulars specified embrace all the essential facts of the case on which a judgment of divorce could have been granted. Since the plaintiff, under oath, admits that he was mistaken in these facts, it should be taken as true that the newly discovered evidence completely overthrows and nullifies the evidence given at the trial, and on which the judgment of divorce was granted. *Page 156

The judgment of the trial court denying the motion of defendant for a new trial is reversed, and a new trial of the case is ordered.

TALBOT, J.: I concur.

BELKNAP, C. J.: I dissent.