
    Lorentz Peterson vs. Elias P. Faust.
    November 17, 1882.
    New Trial — -Newly-discovered Evidence. — The motion for a new trial in this case having been heard and refused by the trial court upon conflicting evidence, and it appearing to this court to have been fairly determined, the judgment was affirmed.
    Action for damages for assault. At the trial in the district court, for Chisago county, before Crosby, J., the plaintiff had a verdict. A motion for a new trial, on the ground, among others, of newly-discovered evidence, was denied, and judgment entered for plaintiff, and the defendant appealed.
    
      H. N. Setzer, for appellant,
    cited Humphrey v. Havens, 9 Minn. 301, (318;) Sargent v. -, 5 Cow. 106; Platt v. Munroe, 34-Barb. 291; Oakley v. Sears, 1 Abb. Pr. (N. S.) 368; Knox y. Bige-low, 15 Wis. 415; Mitchell v. Bass, 26 Tex. 372.
    
      Uelancl é Simes, for respondent.
   Vanderburgh, J.

The only question for the consideration of the court on this appeal is whether the trial court erred in refusing defendant’s application for a new trial upon the ground of newly-discovered evidence. All other points were waived upon the argument. The affidavit of the witness containing'a statement of such evidence was fully met and answered by the counter-affidavits in plaintiff’s behalf on the motion. Such .counter-affidavits were properly received. Finch v. Green, 16 Minn. 315, (355.) Upon this record we are unable to see that there is any reasonable probability that the result would be affected by the alleged new evidence if a new trial were had. Having tried the case, the court which heard this motion was in a position to exercise a proper discretion in determining the merits of the application for a new trial upon conflicting affidavits. We can discover no good ground for questioning the correctness of its decision. Mead v. Constans, 5 Minn. 134, (171;) Lampsen v. Brander, 28 Minn. 528.

Judgment affirmed.  