
    STATE v. JAMES FOSTER.
    
    November 29, 1918.
    No. 20,920.
    Bastard — new trial — newly discovered evidence.
    It is held, in a bastardy proceeding, that tbe findings of the trial court are sustained by the evidence, and that there was no error in the denial of a new trial on the ground of newly discovered evidence.
    Proceeding in the district court for Brown county to charge defendant with being the father of a bastard child. The matter was tried before Olsen, J., who made findings and ordered judgment that defendant pay for the support of the child and give bond for the performance of the judgment. From an orden denying his motion for judgment in his favor or for a new trial, defendant appealed.
    Affirmed.
    
      Albert Hauser, for appellant.
    
      Somsen & Dempsey and A. Fred&riclcson, County Attorney, for respondent.
    
      
       Reported in 169 N. W. 529.
    
   Brown, C. J.

Bastardy proceedings in which the state had judgment, and defendant appealed from an order denying a new trial.

1. The trial below was by the court without a jury, and defendant’s first contention in support of the appeal is that the findings of the trial court are not sustained by the evidence. We have examined the record with care and are unable to concur in that view of the case. A discussion of the evidence would serve no useful purpose. It is sufficient to say that we have given it due consideration, in connection with the brief and argument of defendant, with the result stated. We are unable to say that it is clearly or manifestly against the findings. The most that can be said of the evidence is that it is sharply conflicting, presenting a question peculiarly for the trial court. The court adopted the testimony of complainant and those called in support of the state’s case, and we discover no sufficient reason for disapproving that conclusion.

2. It is also contended that the trial court-erred in not granting a new trial on the ground of newly discovered evidence. The new evidence was cumulative, and of the same tenor and effect as that given on the trial in support of the defense, and was flatly denied by the affidavit of complainant. There was no reversible error in the refusal of the motion on this ground. The question was addressed to -the discretion of the court in the exercise of which we find no error.

3. It is also claimed that the judgment awarded against defendant is in conflict with chapter 210, p. 296, Laws 1917, in that the judgment requires defendant to give security for the payment of the same, in default of which that he be committed to jail, when under chapter 210 the defendant can in such case be imprisoned only for a default in the payments required by the judgment. This proceeding was commenced long before the passage of that statute, and we do not stop to consider whether it properly should control the form of judgment to be rendered therein. The point was not called to the attention of the court below, and we pass it without further remark, except to say that the cause will be remanded without prejudice to the right of defendant to there apply for a modification of the judgment if he shall be so advised.

Affirmed and remanded accordingly.  