
    Peter P. Wintermute vs. James Stinson.
    Order refusing a new trial asked for on the ground, 1st, of “surprise occurring at the trial,” and 2d, of “ newly discovered evidence,” affirmed; the surprise'averredin the affidavit read by defendant being denied in plaintiff’s affidavit, and the alleged newly discovered evidence not clearly and explicitly appearing to have been newly discovered, and it not appearing that defendant had used due diligent to discover and produce the same, or any other evidence, in support of that branch of his defense to which such newly discovered evidence related.
    In this action an appeal was taken by the defendant from the order of the court of common pleas of Ramsey county, denying his motion for a new trial. The appeal was argued at the January term 1S71. (Wintermute vs. Stinson, 16 Minn. 468.) After the appeal was argued, but before the decision was rendered, the defendant moved in the court below for a new trial on the ground of surprise occurring at the trial, and of newly discovered evidence. The motion was founded upon affidavits, and was opposed by counter-affidavits. The court denied the motion, and from the order denying the same the defendant appeals to this court. The nature of the action is fully stated in the opinion of the court, reported in 16 Minn. supra.
    
    C. K. Davis and R. B. Galusha, for Appellant.
    H. J. Horn and I. Y. D. Heard, for Respondent.
   By the Court.

Berry, J.

Defendant moved for a new trial ■upon two grounds, viz.:

1st. Surprise occurring at the trial. As to this ground the counter affidavit of plaintiff fairly meets and negatives the affidavits read by defendant, and we see no reason whatever for disturbing the action of the court below in giving credit to the former, rather than the latter.

2d. Newly discovered evidence. As • to that portion of defendant’s affidavit relied upon in support of this ground, we agree with plaintiff’s counsel that it does not clearly and explicitly show that the evidence claimed to be newly discovered was not known to defendant in season for the trial. At any rate the affidavit altogether fails to show any diligence upon defendant’s part in making any effort by inquiry or otherwise, to discover and produce the alleged newly discovered evidence, or any other evidence, in support of that branch of his defense upon which the alleged newly discovered evidence bears.. Gen. Stat., ch. 66, sec. 235, subdiv. 6.

Order denying new trial affirmed.  