Plaintiff in error was tried and convicted upon an information charging him with assault, and in accordance with the verdict of the jury was sentenced to pay a fine of five dollars and costs. To reverse the judgment an appeal was taken to this court. Plaintiff in error now files a motion to v dismiss his appeal. Prom this motion it appears that while the appeal was pending in this court a motion for a new trial was made, upon the ground of newly discovered evidence, under that provision of Procedure Criminal (sec. 5938, Rev. Laws 1910) w'hich provides that:

“A motion for a new trial on the ground of • newly discovered evidence may be made after judgment at the term at which the *732 case was tried, or in vacation, before the judge or at the next term of court.”

And that a new trial was granted. Attached to the motion to . dismiss is a certified copy of the order awarding a new trial. The motion to dismiss said appeal is granted and the appeal is dismissed.