Page:North Dakota Reports (vol. 2).pdf/84

 The main authorities relied upon by the appellants are set forth in the opinion.

Jamison & Boucher, (W. H. Francis, of counsel), for respondents:

An order granting a new trial having been made upon good cause shown and in furtherance of justice, and being a matter appealing to the discretion of the court is not subject to review by an appellate court. Barrett v. Railroad Co., 45 N. Y. 628; Hoyt v. Thompson, 19 N. Y. 218; Smith v. Lovejoy, 62 Ga. 372; Detroit Tug OCo. v. Carnter, 42 N. W. Rep. 968. It is well settled that an order granting a new trial will not be reversed unless a manifest abuse of discretion appears. Haas v. Whittier, 21 Pac. Rep. 547; Minturn v. Bliss, 19 Pac. Rep. 185; Nalley v. McDonald, 77 Cal. 284, 19 Pac. Rep. 418; People v. Holt, 73 Cal. 241, 14 Pac. Rep. 856; Peebles v. Peebles, 41 N. W. Rep. 387; Jones v. Parker, 97 N. C. 33, 2 S. E. Rep. 370; Insurance Co. v. Jones, 7 S. E. Rep. 83; Irwin v. McKnight, 76 Ga. 669; Ruffner v. Hill, 7 S. E. Rep. 13; Bussey v. Bussey, 39 N. W. Rep. 847; Langley v. Daley, 46 N. W. Rep. 247; Heilner v. Brown. 12 Pac. Rep. 903. The party alleging error in granting or refusing a new trial must make the error affirmatively appear; must show abuse of discretion (and this the appellants have not done.) Hall v. Bark "Emily Banning," 33 Cal. 522; Weddle v. Stark, 10 Cal. 301; Bensley v. Atwill, 12 Cal. 240; McCarrity v. Byington, 12 Cal. 432; Watson v. McGuire, 17 Cal. 92; Quinn v. Kenyon, 22 Cal. 82; Petery v. Bugby, 24 Cal. 422; Hawkins v. Reichert, 28 Cal. 535. Applications for a new trial on the ground of newly discovered evidence are addressed to the discretion of the court and its action will not be disturbed, except for an abuse of discretion, the presumption being that the discretion was properly exercised. People v. Sutton, 15 Pac. Rep. 86; Longley v. Daly, 46 N. W. Rep. 247; Spootiswood v. Weir, 22 Pac. Rep. 289; State v. Nance, 25 S. C. 168; Grace v. McArthur, 45 N. W. Rep. 518; Gaines v. White, 47 N. W. Rep. 524. When it appears by the record thát a motion for a new trial based upon several grounds was granted by an order which does not disclose any ground for its basis, the ruling will not be disturbed if it can be sustained