On November 6, 1942, appellant was arrested on the street in front of her home. The next morning she was tried on in-formations charging solicitation and possession of lottery slips.
The officer who made the arrest testified that after a brief colloquy on the sidewalk she had invited him into her house for the purpose of sexual intercourse; that he walked with her to the entrance to the yard in front of her house where he placed her under arrest. He stated that he then hailed a passing police car and carried her to the station. There a book containing lottery or “numbers” slips was taken from her purse.
Appellant denied the officer’s version of her arrest and specifically denied the alleged solicitation. The trial court found her guilty on both charges, and since the questions involved were wholly factual, and there was substantial evidence on which to base the findings, we have no grounds for reversal.
November 11, 1942, appellant seasonably filed a motion for new trial, accompanied by affidavits of two persons, one known to-appellant at the time to have witnessed her arrest; the other discovered subsequent to the trial.
The motion for a new trial was denied' November 18, 1942. Meanwhile, on November 13, 1942, appellant had filed her notice of appeal.
At the hearing of the appeal a suggestion was made by counsel that the denial' of the motion for new trial was without consideration of its merits because of the filing of the appeal before the motion was argued and submitted. We therefore directed the trial court to file a supplemental' record showing the grounds for its denial of the motion.1 This supplemental record was filed and discloses that the court rejected the affidavit of one witness because her presence at the time of the arrest was known to appellant prior to the trial, and decided that the statements in the affidavit of the second witness, if true, were not sufficient to cause a reversal of its finding if a new trial were granted.
The granting or denial of a motion for new trial is not ordinarily reviewable on appeal,2 and this is true of a motion based upon newly discovered evidence unless it is found that the denial was at manifest abuse of discretion.3
Here the trial court had heard the testimony at the trial and was in a position to evaluate, as we cannot, the proposed new evidence. Appellant had during a period of nine years ending in 1940 received six sentences for soliciting prostitution; had paid a total of $175 in fines, and served two ninety day terms. This does not in any degree forfeit her right to-the full and equal protection of the law,. *889but it does affect the credibility of her testimony. Assuming that the additional witness whose existence was known to appellant could not be produced at the trial, a continuance should have been requested. The trial court properly refused to consider her affidavit in support of the motion for new trial. And we do not find that the ruling of the trial court as to the probative effect of the affidavit of the newly discovered witness was plainly wrong or was an abuse of discretion.
While there is considerable divergence of opinion in defining “abuse of discretion”, courts agree that “difference in judicial opinion” is not synonymous with “abuse of judicial discretion”.4
As to the conviction on the charge of possessing numbers slips, the affidavits did not attempt to establish innocence but to render inadmissible the evidence on which the conviction was based. The record does not disclose that this evidence was objected to when it was offered; it was not mentioned in the motion for new trial, and apparently this point is raised for the first time on this appeal.
Although we have considered the record to determine whether reversible error exists, it is our opinion that the appeal should be dismissed and not affirmed for the reason that it was taken during the pendency of the motion for new trial, at a time when the judgment lacked “that finality which is essential to appealability.” Leishman v. Associated Wholesale Electric Co., 63 S.Ct. 543, 544, 87 L.Ed. -, decided February 15, 1943.
The Act creating this court 5 limited its jurisdiction to appeals from “any final order or judgment”. Our Rule 27(d) provides that when a motion for a new trial has been seasonably filed the time for filing a notice of appeal “shall not begin to run until disposition of such motion”. The adoption of this rule was unnecessary. It was merely a declaration of the general law, serving as a convenient notice to litigants.
Under statutes containing similar provisions it has been repeatedly decided bj the Supreme Court of the United States that a judgment is not “final” and is not appealable while a motion for new trial, seasonably filed, remains undecided.6 This has been the law of this jurisdiction for many years.
In the early case of Vincent v. Vincent, 3 Mackey 320, under circumstances similar to the present, the court dismissed the appeal.
This case was cited and the rule applied in Southland Industries v. Federal Communications Commission, 69 App.D.C. 82, 99 F.2d 117, where the subject was fully considered and many decisions reviewed. There the court rejected the further contention of the appellant that the appeal might be regarded as dormant and taire, effect upon the final decision of the application for rehearing.7
In this respect our practice is similar to that of the Federal Courts and those of other jurisdictions where the common law has not been changed by statute.8
The Act of April 1, 1942, supra, provides that our rules shall conform as nearly as practicable to the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. This direction was followed in the adoption of our Rule 17, whereby our jurisdiction attaches upon the filing of the notice of appeal. This cannot result if there is then no appealable judgment or order.
Dismissed.
See Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905, where Juvenile Court was directed to rehear motion for new trial and file supplemental record.
Concrete Oil Tank Co. v. Menefee, 61 App.D.C. 63, 57 F.2d 429; Leapley v. Matthews, 60 App.D.C. 251, 50 F.2d 1016; Whelan v. Welch, 50 App.D.C. 173, 269 F. 689; Hill v. United States, 22 App.D.C. 395, 412.
Thomas v. United States, note 1, supra; District National Bank v. Maiatico, 61 App.D.C. 242, 60 F.2d 1078.
Belock v. State Mutual Fire Ins. Co., 106 Vt. 435, 175 A. 19; Cooper v. Carr, 161 Mich. 405, 126 N.W. 468.
Public Law 512, 77th Congress, Act April 1, 1942, 56 Stat. 190.
Northern Pac. R. Co. v. Holmes, 155 U.S. 137, 15 S.Ct. 28, 39 L.Ed. 99; Kingman & Co. v. Western Mfg. Co., 170 U.S. 675, 18 S.Ct. 786, 42 L.Ed. 1192; United States v. Ellicott, 223 U. S. 524, 32 S.Ct. 334, 56 L.Ed. 535.
See, also, Woodmen of the World Life Ins. Ass’n v. Federal Communications Commission, 69 App.D.C. 87, 99 F.2d 122.
Clarke v. Eureka County Bank, C.C. Nev., 131 F. 145; Durrence v. Waters, 140 Ga. 762, 79 S.E. 841; Duke v. Story, 113 Ga. 112, 38 S.E. 337; Colchin v. Ninde, 120 Ind. 88, 22 N.E. 94.