Page:North Dakota Reports (vol. 2).pdf/88

 163. The action was not prosecuted for the immediate benefit of Biggert. However, it is only necessary to look upon the receipt alleged to have been newly discovered to see that no court would be justified in submitting it to a jury as any evidence of payment, without evidence connecting it with plaintiff's claim in this case. Nor is it probable that the jury would have rendered a different verdict had the receipt been received in evidence and considered on the trial. No attempt is made to oonnect it with the plaintiff's claim, which forms the basis of this action, by any evidence that would be competent on a new trial. "The evidence must be such as to render a different result probable on a re-trial: This is a consequence of the provision that the cause for which a new trial may be granted must be one materially affecting the substantial rights of the party. If there be no probability that the new evidence would change the result, its absence cannot be raid to have materially affected the substantial rights of the party." Hayne, New Trials & App. § 91, and cases cited. To same effect, Spottiswood v. Weir, 80 Cal. 448, 22 Pac. Rep. 289; Grace v. McArthur, 76 Wis. 641, 45 N. W. Rep. 518. The evidence connecting the receipt and plaintiff's demand for freight must be competent. Hayne, New Trials & App. § 91; People v. Voll, 43 Cal. 168. It is true that the appellate court will uphold the ruling of the trial court granting a new trial when it would have refused to disturb the decision of that court had a new trial been denied. But the discretion of the trial court must be legally exercised. It has bounds, and the appellate court will see that these limits are respected. The party recovering a judgment has valuable rights which cannot be dissipated by the judicial breath. There must be some ground for the new trial. Clifford v. Railroad Co., 12 Colo. 125, 20 Pac. Rep. 333; Lorenzana v. Camarillo, 41 Cal. 467. Said the court in the Clifford Case: "The general rule so often announced, that a stronger presumption obtains in favor of an order granting than one denying a new trial, is urged in the present case as a strong reason why the ruling should not be disturbed. This rule should also be limited to cases wherein the ground on which the new trial was granted constitutes a legal ground for such order, and the alleged causes have