The opinion of the court was delivered by

At the trial of this case in the court below, on the 27th of March, 1897, the cause was submitted to the jury about six o’clock p. m., on Saturday evening. Shortly after, the court by announcement adjourned until Monday morning, and the counsel on both sides retired from the court house. Thereafter, at about eight o’clock the same evening, the jury having agreed upon their ver*207diet, the judge was called, received the verdict, had it filed and recorded, and discharged the jury. This was done in the absence of counsel. On the 30th of March, respondents’ counsel moved for a new trial, and the showing was made by affidavit, that, had the jury been polled, sufficient jurors would not have agreed to the verdict to maintain the same. Upon such showing, motion for a new trial was granted by the court.

"We are satisfied from the whole record in this case, including the time of filing the motion for a new trial, that the court did not abuse it's discretion in granting said motion. As has been often said by this court, motion for a new trial is addressed to the sound discretion of the court, who is acquainted with all the circumstances surrounding the case, and unless it is manifest that the discretion vested in the court is abused, this court will not disturb its judgment. The judgment will therefore be affirmed.

Scott, O. J., and Anders, Gordon and Reavis, JJ., concur.