
    [No. 15624.
    Department One.
    March 1, 1920.]
    Swan Hultin et al., Appellants, v. William Wagner et al., Respondents.
      
    
    Appeal (272)—Recobd—Affidavits on Motion fob New Tbial. Error cannot be assigned upon granting a new trial for newly discovered evidence where the affidavit upon which it was made was not brought up in the record.
    Appeal from an order of the superior court for Clarke county, Back, J., entered May 26, 1919, granting a new trial, in an action for damages from fire, after a verdict in favor of the plaintiff.
    Affirmed.
    
      Geo. B. Simpson, for appellants.
    
      W. W. Sparks and McMaster, Hall & Drowley, for respondents.
    
      
      Reported in 188 Pac. 29.
    
   Main, J.

The purpose of this action was to recover damages caused by fire. The complaint alleges that the fire was negligently started by the defendants upon the farm occupied by them, and was negligently permitted to spread and extend to the land of the plaintiff, where it did the damage complained of. The allegations of the complaint were denied by the answer. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs in the sum of $150. The defendants made a motion for judgment notwithstanding the verdict, and also for a new trial. The former motion was overruled, and the latter granted. The plaintiffs appeal.

One ground for new trial was that of newly discovered evidence. The order granting the new trial recites that an affidavit was filed and considered, and that the motion was granted upon the ground of newly discovered evidence which, could not, with reasonable diligence, have been produced on the trial. The affidavit referred to in this order does not appear in the record brought here. Without the affidavit, it could not be held that the trial court abused its- discretion in granting a new trial.

The judgment will be affirmed.

Holcomb, O. J., Parker, Mackintosh, and Mitchell, JJ., concur.  