(On Behearing) A petition for rehearing filed herein ably and earnestly presents that a new trial should be granted on the ground of newly discovered evidence. It is contended that this evidence is of such character that a different result would be probable on a retrial. And exception is taken to that part of the former opinion wherein we said that “this was, however, a matter peculiarly within the knowledge of the trial judge, who saw and heard the witnesses, including the defendant, observed their manner and appearance, and was familiar with the various incidents in the trial of the action.” In discussing this matter the petition for rehearing says: “Just how Judge Fisk, sitting as trial judge, is more able to determine the probable result of a trial than any of the members of this learned court, with the same record before them, is beyond our comprehension.”
If the rule contended for by appellant’s counsel were adopted, it would abolish the fundamental principle applicable to motions of this kind, viz., that they are addressed to the sound judicial discretion of the trial court. The law applicable to motions of this kind has been fully discussed by this court in the case of Aylmer v. Adams, 153 N. W. 419, and we can add nothing to what has been there said. We have before us, it is true, a statement of case, containing the testimony offered, reduced to narrative form, and also the affidavits relative to the newly discovered evidence. But even at that we would be compelled to base our judgment upon “the comparison of one lifeless record with another, — the affidavits with the record of the proceedings -on the trial.”
The trial judge was entirely differently situated. He had seen and heard the witnesses, and observed their appearance and demeanor, and was familiar with the trial and its various incidents. See Braithwaite v. Aiken, 2 N. D. 57, 63, 49 N. W. 419. When the trial judge considered the alleged newly discovered evidence he was required to weigh it with the evidence received at the trial, and in such consideration the peculiar knowledge received by him during the trial entered into and formed part of the reasons on which his judgment was based, when he held that a new trial should be denied.
In Spelling on New Trial and Appellate Practice, § 221, it is said: '“The probability of a different result upon a retrial, often suggested *81as a test of the sufficiency in point of materiality and importance of alleged new evidence to warrant a new trial, is merely a guide for the courts in arriving at a conclusion as to whether, with the addition of the new evidence, the result ought to he different.” But the duty of deciding the motion rests primarily with the trial court, and the question whether a different result is probable is necessarily included in its decision.
The petition for rehearing is based on the erroneous theory that this court has denied a new trial. The question of whether or not a new trial ought to be granted was primarily a question for the trial court. The function of this court on this appeal is merely to review the ruling of the trial court on this motion, and this review is limited to a determination of the question of whether in denying a new trial the trial court abused its discretion, and thereby effected an injustice. The discretion vested in the trial court should always be exercised in the interests of justice. The presumption is that it was properly exercised. Even if all the newly discovered evidence had been offered at the trial, there would still be ample evidence to sustain the verdict. The trial court, after considering the newly discovered evidence, and weighing the same with the evidence adduced upon the trial, was still of the opinion that substantial justice had been accomplished at the former trial. There is nothing to justify this court in saying that the trial court erred in its conclusion, or abused its discretion in so holding. A rehearing is denied.