The facts sufficiently appear in the opinions. This is an appeal from a judgment and order denying a motion for new trial in a divorce proceeding, taken upon two grounds: First, error in law, in refusing to admit evidence *Page 155 of a conversation between the witness and defendant relative to her physical condition upon a certain day; and, second, that the judgment and decision are contrary to and unsupported by the evidence. Upon the first ground, the excluded testimony was hearsay. Upon the second ground, the evidence may be susceptible of a different construction; but the district court, having an opportunity to observe the demeanor of the witness, and to estimate the weight to be attached to the testimony, denied the motion, and its discretion will not be disturbed by this court. Upon the motion an affidavit of respondent was filed, showing that he had given certain testimony at the trial which he believed at the time to be true, but upon reflection, after an interval of several months, now thinks may be unjust to defendant in several particulars. Conceding the facts stated in the affidavit to be true, there still remains enough in the testimony taken at the trial to support the judgment. Judgment and order affirmed.
TALBOT, J.: I concur.
ON REHEARING.