though the latter court would have reached a different conclusion had it been called upon to exercise its own discretion in the first instance. In the language of the court in Clifford v. Railroad Co., 12 Colo. 125, 20 Pac. Rep. 333: "This rule should also be limited to cases wherein the ground on which the new trial was granted constitutes a legal ground for such order, and the alleged causes have an actual existence." An order granting a new trial is an appealable order. § 5236, subd. 3, Comp. Laws; Laws 1891, regulating appeals, § 24, subd. 3. This clearly indicates that the trial judge who grants a new trial must act, not arbitrarily, but upon facts showing a legal ground for a new trial. A principle important to be borne in mind on such an application is that the claim of newly discovered evidence is looked upon with suspicion; that the papers upon which the motion is based should be scanned in a spirit of distrust; and that the "strictest showing of diligence, and all other facts necessary to give effect to the claim," should be required by the court. Hayne, New Trials & App. § 87, and Cases; People v. Sutton, 73 Cal. 243, 15 Pac. Rep. 86; Longley v. Daly (S. D.), 46 N. W. Rep. 247; Spottiswood v. Weir, 80 Cal. 448, 22 Pac. Rep. 289; Gaines v. White (S. D.), 47 N. W. Rep. 524. This salutary rule must have been ignored by the trial judge in awarding the new trial in this case.
The statement which Mr. Jordan in his affidavit swears that John D. Biggert made out and signed in his presence was not newly discovered evidence at all. The statement was offered in evidence on the trial, and on motion of counsel was stricken out after having been received in evidence in the deposition of John D. Bıggert. It would appear, nothing to the contrary being known, from the affidavit of Mr. Jordan, that John D. Biggert himself made out the statement without any direction or aid from Joseph Leighton; and it is intended to carry the conclusion that, representing the parties, he had thus made an admission against their interests. But the inference which it is sought to have drawn, that the physical act performed by Biggert in making out this statement was the expression of his own knowledge of the matter, and hence an admission, is destroyed by what defendants themselves offered to prove by the testimony
