
    ORVILLE BARNES, Appelant, vs. JERUSHA MERRICK, Ex., Respondent.
    APPEAL PROM THE RACINE CIRCUIT COURT.
    A motion for a new trial is addressed to the discretion of the Gourt, and this court will not interfere by reversing the judgment, unless there has been a gross abuse of that discretion on the part of the court below.
    This was an action commenced before a Justice of the' Peace before whom a trial was held, a judgment rendered for the plaintiff, and the defendant appealed to the Circuit Court. Upon trial of the cause in the Circuit Court, the plaintiff again recovered, and the defendant moved a new trial, principally upon the ground of surprise — that three certain witnesses named in his affidavit, testified differently from what he had supposed they would, and at variance with the fact — which motion, upon argument, the Circuit Court overruled, and from this order overruling the motion for a new trial, the defendant appealed to this court.
    
      W. P. Lyon for Appellant.
    
      J. W. Gary for Eespondent, cited Cook vs. Holmes, 5 Wis. 107; State vs. Lamont, 2 Id., 437; Moss vs. Yroman, 5 Wis., 147; 1 Graham & Waterman’s New Trials, 176, 199; 3 Greenleaf E., 77.
   By the Cowrt,

Cole J.

This court has so frequently decided the only question presented in this case, which is, that applications for new trials are mainly addressed to the sound discretion of the court in which they are made, and that this court will not interfere and reverse a judgment on account of an alleged error in denying a motion for a new trial, unless there has been a gross abuse of this discretion on the part of the Circuit Court, that it would seem as if it was about time that this point at least was no longer open for argument here.

The judgment of the Circuit Court is affirmed with costs.  