A rehearing in a trial court has the same effect as the granting of a new trial or opening up a default has in the same court. It results in a new trial of questions of fact. (Sec.7-601, I. C. A.; People v. George, 3 Idaho 108, 112, 27 P. 680;Kimple v. Conway, 69 Cal. 71, 10 P. 189, 190; People v. Lopez, 43 Cal. App. Supp. 2d 854, 110 P.2d 140, 147; City of LosAngeles v. Morris, 74 Cal. App. 473, 241 P. 409, 411-12.)
Even though a rehearing (or new trial) had been granted by the board in this case and all the proposed new evidence had been adduced in the most favorable light contended for by appellant, still it would have been within the power of the board, passing upon conflicting testimony, to have denied the relief sought and to have made the same order, originally made. After examining the showing for a rehearing, the board evidently thought the proposed evidence, if given, would not change or alter their conclusions.
It is apparent, from the statement of Dr. Kellogg, that he did not think or, at any rate, doubted whether appellant's claim was meritorious. The same is true as to the testimony of Dr. Pittenger. There would have still been a conflict in the evidence; and the board would have had a right to believe the testimony sustaining the order which they had originally made. In this view of the case, it can not be said that the board abused its discretion in denying a rehearing on the issues previously submitted.
It is a well established rule of this court, that the granting or refusal to grant a new trial or vacate a default or refuse to do so, is in the sound discretion of the court to *Page 464 which the application is made and will not be disturbed on appeal except for a clear abuse of discretion. Here we should not forget that the Industrial Accident Board is vested by the constitution with exclusive power and authority to determine the facts in these cases. (Amendment to sec. 9, art. 5 of the Constitution, 1937 Sess. Laws, p. 498.) That jurisdiction and authority applies as well to the granting of a rehearing (or new trial) as it does to the actual trial of the case in the first instance.
The order or judgment of the board should be affirmed.