ON BEHEABING-.
Bubgess, J.I. In his motion for rehearing the defendant claims that the court overlooked his objections to plaintiff’s first instruction, to which he makes many.
The chief objection to the instruction is because of the clause which reads as follows, viz.: “If the court believes from the evidence that R. J. Stepp was county surveyor of Clay county, Missouri, at the time he made the survey of the piece of ground afterwards platted *435.and known as Allen & Burns’ addition to the city of Liberty, and at said time found the stump of the witness tree at etc.” Defendant claims that the instruction is wrong, because of the fact that it refers to Stepp as county surveyor and to the finding of the stump of a witness tree at the corner of sections 5, 6, 7 and 8, by him, when in fact he made no record of the survey, thereby attaching to his testimony more importance and weight than it was entitled to, over and above other witnesses of like experience and occupation.
The cause was tried by a court of experience and learning and it is utterly impossible to see how he could have been misled by this instruction or have attached any undue importance to the testimony of this witness. It is certainly not to be inferred from the fact that the instruction refers to ' him as county surveyor. Something must bo conceded to the intelligence and powers of discrimination of the trial court in all matters that come before it, and more especially in passing upon tho weight of testimony, and the credibility of witnesses with whose characters and standing he is in a large degree quite familiar, and especially is this true in the rural districts. If cases were to be reversed because of giving instructions subject to verbal criticism or technical objections, there would be but few that would withstand the assaults of the legal- critic.
It is rarely if ever that two different surveyors run the same line in the same place, and, injcontroversies over surveys and boundary lines as in the . case at bar, it may be safely stated that there is no question arising in the practice of the law where witnesses are so certain to differ, and where the evidence is so universally conflicting, as in cases of this character.
We think that the instruction presented fairly the law of the ease as far as it went, and that defendant’s rights were not prejudiced thereby. The instructions taken *436as a -whole seem to be in line with the rule laid down by this court in the cases of Jacobs v. Moseley, 91 Mo. 457 and Knight v. Elliott, 57 Mo. 317, and were certainly authorized by the evidence.
Nor is there any conflict between the instructions given on the part of the plaintiff and those given in behalf of the defendant. They simply present different theories of the case as presented by the evidence.
II. It is also claimed by defendant that the court committed error in refusing to open the case after it had been finally submitted, and in refusing to allow defendant to introduce other and additional evidence. The case was tided on the twenty-eighth day of February, 1890, and the court held it under advisement until the twenty-second day of April next thereafter. On the twelfth day of March after the cause was submitted, defendant asked permission to introduce newly discovered and material evidence, which the court declined to do. This was a matter entirely within the discretion of the trial court, and unless this discretion was unwisely or harshly exercised we have no authority whatever to interfere.
There was a vast amount of testimony introduced on the trial, pro and con, and it would seem that neither of the parties have any cause to complain because of the want of a fair and impartial trial. After the court had heard the voluminous amount of evidence that had already been introduced, it was certainly no abuse of its discretion to refuse to reopen the case. Not only this but the newly discovered evidence was simply contradictory of the statements of the witness Stepp and would not in all probability have produced a different result of. the cause, and where such is the case a new trial will not be granted. State v. Welsor, decided at this term, and authorities therein cited.
*437After a careful review of all the authorities cited by appellant, we are entirely satisfied with the opinion of Judge Macfarlane, and that the judgement ought to he affirmed.
All of this division concur.