
    PETERS v. FOSS et al.
    
    Motion for new trial is addressed to the sound discretion of the Court, and the Supreme Court can interfere only in case of plain abuse of such discretion.
    Appeal from the Tenth District.
    Suit for damages to mining claims. Further facts than appear in the opinion is unnecessary.
    
      H K. Mitchell, for Appellant.
    
      Goodwin Si Belcher, for Respondents.
   Cope, J. delivered the opinion of the Court

Baldwin J. concurring.

On the trial of this case, it was held by the Court that the answer was insufficient to raise an issue, except upon one of the allegations of the complaint, and the introduction of evidence was limited accordingly. When the answer was declared to be insufficient, the defendants asked leave to amend, but the Court refused to allow the amendment, and the plaintiff obtained a verdict. A new trial was afterwards granted, and from the order granting it the plaintiff appeals to this Court.

A motion for a new trial is always addressed to the sound discretion of the Court, and we can only interfere where there has been a plain and obvious abuse of this discretion. There does not seem to have been any such abuse in the present case. We are not informed of the particular reasons upon which the Court acted, but sufficient appears to satisfy ns that interference on our part would be improper. The defendants might with great propriety have been permitted to amend their answer, and substantial justice would doubtless have been promoted by such a course. In any shape in which the question could have been presented to us, we would probably have regarded the action of the Court upon that subject as conclusive; but a new trial having been granted for the purpose, no doubt, of affording the parties an opportunity to present the case fairly on its merits, we do not feel ourselves at liberty to interfere. '

Order affirmed.  