upon any of the specified grounds of the motion. People v. Lum Lit, 83 Cal. 130, 23 Pac. Rep. 228; Barney v. Dudley, 19 Pac. Rep. 550; Taylor v. Railroad Co., 79 Ga. 330, 5 S. E. Rep. 114; Curtis v. Starr, 24 Pac. Rep. 806. To render newly discovered evidence cumulative and thus an insufficient basis for a new motion for a new trial, it must be of the same quality or description as that given upon the trial of the action. Wilcox Silver Plate Co. v. Barclay, 48 Hun 54; National Bank v. Heaton, 6 N. Y. Supl. 37; Parshall v. Klinck, 43 Barb. 212.
The opinion of the court was delivered by
CORLISS, C. J. The judgment in this litigation in favor of the plaintiff has already been affirmed by this court as to two of the defendants. Braithwaite v. Power, 1 N. D. 455, 48 N. W. Rep. 354. While the appeal of these two defendants was pending in this court, the remaining defendant, Harvey Harris, as administrator of the estate of Joseph Leighton, deceased, made a motion for a new trial on various grounds, which was granted not only as prayed for, but to the extent of destroying the entire judgment, not only as against Harris as administrator, but also as against the two defendants who previously had been unsuccessful in their efforts to secure a new trial, and who were. at that moment challenging in this court the decision of the trial court refusing them this relief. The recitals in the order granting them a new trial, and the sweeping language of the order, force us to the conclusion that the trial court has assumed to grant a new trial as to defendants, over which it had no jurisdiction for that purpose, because they theretofore had removed the judgment and record to this court by appeal. We will not discuss the power of the trial court to render the judgment of this court nugatory before it is promulgated. We think the court erred in awarding the new trial, even assuming that the order affected the verdict and judgment only so far as the interests of the defendant, Harris, were concerned. While the motion was made upon several grounds, and while the order does not disclose the precise foundation on which it stands, yet we are relieved from the necessity of demonstrating that it can rest upon none of the grounds set forth in the notice of inten-
