
    [No. 16707.
    Department Two.
    December 22, 1921.]
    Mary Hafner, Respondent, v. P. P. Fitzpatrick, Appellant.
      
    
    New Trial (34) — Grounds—Newly Discovered Evidence — Discretion. The denial of a motion for a new trial cannot be said to be an abuse of the court’s discretion in such matters where the affidavits for and against are flatly contradictory, and when one of the affidavits for a new trial was that of a person who was admittedly a wrongdoer in the subject-matter of the action.
    Appeal from a judgment of the superior court for Franklin county, Truax, J., entered March 29, 1921, upon findings in favor of the plaintiff, in an action in replevin, tried to the court.
    Affirmed.
    
      Edward A. Davis and B. B. Horrigan, for appellant.
    
      Chas. W. Johnson, for respondent.
    
      
      Reported in 203 Pac, 3.
    
   Per Curiam.

— This is a replevin action to recover an automobile owned by the respondent. The trial court, on conflicting testimony, found that the automobile was feloniously taken from the respondent’s possession by one S. J. Nowland and sold by him to the appellant, and ordered the automobile, or its value, returned to the respondent.

The testimony does not preponderate against the findings of the trial court. As a matter of fact, it is nearly conclusive that the findings are correct.

After the judgment had been entered, the appellant made a motion for a new trial upon the ground of newly discovered evidence, and in substantiation of the motion presented the affidavits of Nowland and others, which contradicted the testimony given on the trial by the respondent and her witnesses. These affidavits on behalf of the appellant were controverted by affidavits furnished by the respondent, and upon the consideration of all of them, the trial court denied the motion for a new trial. It is now urged upon us that this is error.

The denying or granting of a motion for a new trial is, to a large extent, in the discretion of the trial court, and we are satisfied that this discretion was wisely exercised in the instant case. Nowland was admittedly a wrongdoer. The trial court was justified in placing little credence in his statements, and in addition, his and the accompanying affidavits were flatly contradicted by counter affidavits.

The court, having heard the witnesses at the trial and being fully conversant with the facts, is in a far better position than this court to determine whether sufficient showing had been made to justify a reopening of the case. We are satisfied that he did not act improperly in disposing of the motion, and the judgment is affirmed.  