Page:North Dakota Reports (vol. 2).pdf/89

 an actual existence." But this rule should have but little weight in this case, for the reason that the judge by whom the new trial was granted was not the judge before whom the case was tried, and therefore was no better qualified by reason of having been present at the trial properly to exercise discretion in the matter than this court. "The discretion vested in the trial court to grant or refuse a new trial is neither an arbitrary nor a general discretion. It is based on the theory that the judge who tries a case, having the parties, their witnesses and counsel before him, with opportunity to observe their demeanor and conduct during the trial, and to note all incidents occuringoccurring [sic] during its progress likely to affect the result thereof, is better qualified to judge whether a fair trial has been had and substantial justice done than the appellate tribunal." To the judge who granted this new trial the record was as cold and lifeless as it is to us. No recollection of the appearance, demeanor, conduct of witnesses and parties; no impressions derived from the view of the trial and its manifold incidents-went to make up the judgment that deemed a new trial just. That judgment was the result merely of the comparison of one lifeless record with another-the affidavits with the record of the proceedings on the trial.. The reason for the rule that the order granting a new trial is to be sustained, although the trial court would have been justified in reaching a different conclusion, and although the appellate court might deem a different conclusion the better one, therefore does not exist in this case; and the rule itself should not, under such circumstances, be rigidly followed, if followed at all. Comp. Laws, § 4697. But the order granting the new trial being defended only on the ground of newly discovered evidence, we are clear that, under the most liberal rule in favor of the decision of the trial court, the order cannot be sustained. So far as the receipt is concerned, it is entirely foreign to this case.

Two other facts are set forth: It is claimed that there was a talk of settlement between Leighton and John D. Biggert, who, it is insisted, was acting for the parties interested in the freight, to recover which the action was, brought. The averment that he represented all the parties is on information and