ALLEN, P. J. —
This is an appeal from a judgment and an order denying a new trial. Findings of fact were waived, and no evidence is presented by bill of exceptions, or otherwise. The only question argued by counsel for appellant relates to the action of the trial court in refusing to modify its judgment, and in denying the motion for a new trial, which motion was based upon affidavits of newly discovered evidence. This action of the court in passing upon such motion involved discretion and will not be disturbed, except in cases where the court's abuse of such discretion is made to appear. For aught in the record, the evidence claimed to have been newly discovered may have been merely cumulative, or of such character that, if taken in connection with the other evidence, it would not have affected the judgment, and, therefore, would not have afforded a reasonable ground for the granting of such motion. If upon any hypothesis the action of the trial court, in disposing of a motion of this kind, can be sustained, it should not be disturbed upon appeal.
Judgment and order affirmed.
Shaw, J., and James, J., concurred.