Page:North Dakota Reports (vol. 2).pdf/83

 WILLIAM BRAITHWAITE, Plaintiff and Appellant, v. HENRY C. AIKEN, HARVEY HARBIS, as Administrator of the Estate of JOSEPH LEIGHTON, Deceased, and THOMAS C. POWEr and JOHN W. POWER, under the name and style of BENTON LINE, Defendants and Respondents; WILLIAM REA and GEORGE F. ROBINSON, Co-partners as ROBINSON, REA & Co., J. C. KAY and WOODRUFF MCKNIGHT, Co-partners as KAY, MCKNIGHT & Co., and A. W. CADMAN, as A. W. CADMAN & Co., and JOSEPH MOC. BIGGERT, Intervenors and Appellants.

New Trial-Newly Discovered Evidence-Sufficiency of Affidavit.

1. Affidavit held insufficient to justify the granting of a new trial on the ground of newly discovered evidence.

2 To warrant the granting of a new trial on such grounds affidavits must show such new facts as will probably lead to a different result on a new trial.

3. The facts must be established by the affidavit of persons who are personally familiar with them. It is not sufficient to set forth that another will testify to these facts or some of them. The affidavit of such person showing what he personally knows about them must be produced, unless some strong reason is shown why this requirement should be dispensed with.

4. Applications for new trial on this ground are looked upon with disfavor and distrust.

5. Although the trial court has large discretion in awarding or re- fusing new trials, which wıll not be interfered with except in case of abuse, yet when a new trial is granted upon a particular ground, there must be some legal evidence that such cause for a new trial exists, and the ground must be a legal ground for granting a new trial.

(Opinion filed June 22, 1891. Re-hearing denied Aug. 4, 1891.)

APPEAL from district court, Burleigh county; Hon. W. H. WINCHESTER, Judge.

George W. Newton, for appellant William Braithwaite. Louis Hanitch, for intervenors and appellants. Jamison & Boucher and Francis & Barnes, for respondents.

Appeal from an order granting a new trial Reversed.