must have been, and was, cognizant of the existence of such facts, and that he did not disclose them to affiant. It is alleged in the affidavit "that one of the grantors of the said plaintiff held deeds of conveyance and assignment and relinquishment of all the interests in the estate of Zadock Loveless to William J. Loveless by the heirs of such estate, including Mary E. Draper, the wife of said defendant, conveying the said property described in said complaint, and that, at the time of the execution and delivery of such deeds, the grantor of this plaintiff entered into the possession of such premises by virtue of such conveyance."

termination under the law as to which party | and especially the essential facts on which held the legal title to this property; the plaintiff's title and right of possession restplaintiff claiming and asserting its title ed, that, subsequent to the making and enthrough a deed from the administrator of tering into the stipulation, affiant learned the estate of one Zadock Loveless, deceased, other facts in relation to plaintiff's cause and the defendant claiming the property by of action, and alleges that at the time of reason of being an heir at law of Zadock | entering into the stipulation the defendant Loveless, deceased. Under the facts stipulated, the only question that was open for the court to decide was whether or not the administrator's deed passed title to the land, or the heirs at law of Zadock Loveless took title to the land by patent from the United States, freed of any and all rights of the creditors of the estate of Zadock Loveless, deceased. The court decided, and rightfully, we have no doubt, that the plaintiff in the case acquired no title by reason of the administrator's deed, and that the title had vested in the heirs of the deceased. It appears that Zadock Loveless died intestate in Washington county in the year 1884, and that prior to his death he had settled and made homestead entry upon the land in controversy, and that he had not made final proof on the land or received patent therefor prior to his death. Subsequent to the death of Loveless, such proceedings were taken by William Loveless for the heirs that on January 13, 1888, a patent was issued by the United States, granting and conveying "unto the heirs of Zadock Loveless, deceased, and to their heirs, the tract of land" described in plaintiff's complaint. Prior to the issuance of patent, the administrator duly and regularly petitioned the probate court of Washington county for an order authorizing him to sell this homestead claim and improvements, and thereafter an order of sale was duly and regularly made, and the administrator, accordingly, and in pursuance thereof, on November 11, 1886, sold the land, and all the right, title, interest, and claim of the estate therein to one Edwin B. Lockwood.

Respondent deraigns its title to the property through the administrator's deed made to Lockwood. The court decided that no title passed by the administrator's sale, but that, on the contrary, the title from the United States was vested directly in the heirs of Zadock Loveless, and that the estate of the deceased acquired no right or interest therein. Judgment was accordingly entered on January 10, 1908, in favor of the defendant. Thereafter, and on March 19, 1908, L. L. Burtenshaw, attorney, and also secretary of the plaintiff corporation, made and filed a motion and affidavit to vacate and set aside the stipulation of facts and the judgment based thereon. This affidavit in no way attacks or assails the correctness of the stipulation or any of the facts therein set out, but alleges that Mr. Burtenshaw, as the representative of, and attorney for, the plaintiff corporation, was ignorant of and

It should be here observed that Mary E. Draper, the wife of defendant, is a granddaughter of Zadock Loveless and one of his heirs. It is further alleged by the affidavit that, after the signing of the stipulation of facts, one Andrew Adams, who was the administrator of the estate of Zadock Loveless, deceased, informed affiant that he (Adams) had been intimately acquainted with the lands in controversy since the year 1884, and that as administrator of the estate he sold the land to Edwin B. Lockwood, who immediately went into possession of the premises, and that he (Adams) knew of the deeds of conveyance and relinquishments from the heirs of Zadock Loveless, conveying all their interest in and to the estate of the deceased Loveless. The affidavit further alleges that the affiant learned similar facts as to the conveyance from the heirs of Loveless in an interview with one Martha J. Wheelhouse, and also learned from her that the plaintiff's grantors have been in the continuous possession of the premises for a great many years. Touching the knowledge affiant and plaintiff previously had with reference to these matters and the diligence exercised in procuring such knowledge, the affidavit proceeds: "This affiant further says that it was not possible for the said plaintiff or this affiant to have discovered or produced the said facts above stated, as they were unknown to this affiant at the time of making such stipulation, for the reason that the said Andrew Adams did not at that time, and had not for a long time prior thereto, been a resident of this state, and the said plaintiff and this affiant not having any knowledge of said facts, or any of them, had no reason to suspect that such facts existed, and the said deeds of conveyance had not been recorded, but had been kept in the possession of the said Andrew Adams, and their existence was entire ly unknown to the said plaintiff and this af

Although the judgment in this case was entered on January 10th, no move was made toward procuring a new trial or the vacation of the judgment or to secure any relief until March 19th. It was exactly one year from the day appellant filed its complaint until it came into court to make a showing that it had discovered the real evidence on which the true theory of its case was to be presented. This was not diligence. It did not amount to the prosecution of the action in good faith and with due diligence. Lawsuits must be brought to an end some time, and judgments must become final. Whether or not the respondent really has a good cause of action which it could successfully wage in this case, we are not able to determine from this record. On the other hand, we are convinced from the record that it has not exercised diligence and care such as would entitle it to relief in this manner.

prepare for trial. It ought to have known Van Camp v. Emery, 13 Idaho, 207, 89 Pac. the source of its title-whether it rested on 752. a legal or equitable title, and whether upon deeds of conveyance or adverse possession. At the time of the trial, it evidently thought its title rested upon deeds of conveyance. It then proposed to establish its title through mesne conveyance from the administrator of the estate of Zadock Loveless. After the decision was rendered against it, and it concluded that it could not successfully maintain its title and right of possession on that theory, it evidently began looking about to ascertain other evidence on which it could rest its title. Judging from the record, it then evidently concluded that it could safely rest its title on deeds directly from the heirs of Loveless and adverse possession had under those deeds. If these deeds were in evidence, we could at once judge of their nature, character, and sufficiency. It is somewhat significant that they are not to be found in the record. The newly discovered evidence should have been produced. The wording of the affidavits themselves indicates to our minds that the deeds on which plaintiff relies are simply deeds and relinquishments from the heirs to any rights they had in the estate of the decedent, Loveless.

The order of the district court vacating the judgment was erroneous, and it must be reversed, and it is so ordered. Costs awarded in favor of appellant.

SULLIVAN, C. J., and STEWART, J.,

concur. As hereinbefore observed, such relinquishments would not aid appellant in any respect. A judgment should not be vacated or a new trial granted unless it appears from the showing that a different judgment would likely be entered in the event a new trial is granted. Spelling, New Trial & App. Prac. § 221.

It has been argued very strenuously by the respondent here that the vacation of a judgment or granting a new trial, is a matter within the discretion of the trial court, and that, unless there is a manifest abuse of that discretion, the order will not be reversed on appeal. That is the general and prevailing rule, and has been recognized and followed by this court. Holland Bank v. Lieuallen, 6 Idaho, 127, 53 Pac. 398; Twin Springs Placer Co. v. Upper Boise Hydraulic Min. Co., 6 Idaho, 687, 59 Pac. 535; Holzeman v. Henneberry, 11 Idaho, 428, 83 Pac. 497; Western Loan & Sav. Co. v. Smith, 12 Idaho, 94, 85 Pac. 1084. We are reminded. however, by the record in this case, of the fact that the trial court heard this case on a stipulation of facts, and that no witnesses were sworn or examined before that court. The motion to vacate and set aside the judgment was made on affidavits, and no witnesses were examined before the court. In such instances the rule is that this court will make an original examination of the evidence as contained in the record and will exercise its judgment and discretion the same as if the case were being presented to us for determination in the first instance.

(16 Idaho, 560)

BINKLEY v. STEPHENS, State Fish and
Game Warden.

(Supreme Court of Idaho. May 22, 1909.) 1. GAME (§ 7*)-RIGHT TO POSSESSION.

Under the provisions of section 9 of the game laws (Sess. Laws 1905, p. 264), it is a misdemeanor for any person to have in his possession carcasses, skins, heads, or antlers of game animals in excess of the number provided for by said act.

[Ed. Note. For other cases, see Game, Dec. Dig. $ 7.*]

2. GAME (§ 6*)

POSSESSION OF GAME RIGHTS OF GAME WARDEN. Under the provisions of said act, the game warden has general power and authority to take possession of game animals, or any parts thereof, from any person who has in his possession such animals, or parts thereof, in excess of the number which he may legally have in his possession under the provisions of said law.

[Ed. Note. For other cases, see Game, Dec. Dig. § 6.*]

(Syllabus by the Court.)

Appeal from District Court, Fremont County; J. M. Stevens, Judge.

Action by William Binkley against W. N. Stephens, State Fish and Game Warden. Judgment for defendant, and plaintiff appeals. Affirmed.

H. L. Fisher, for appellant. Soule & Soule, for respondent.

SULLIVAN, C. J. This action was brought by the plaintiff, Binkley, who is appellant here, against W. N. Stephens, the

the ones indicated, and the plaintiff had never disclosed to any one in Idaho what the box contained. The said shipment and scalps were not accompanied by a sworn statement of the plaintiff or any one else showing that the said scalps were not procured contrary

state fish and game warden of the state of Idaho, who is respondent, to recover the alleged value of 48 elk scalps, 1 antelope scalp, and 1 calf elk scalp; said scalps consisting of the skin of the heads and necks of such animals. The case was tried upon a stipulation of to any of the provisions of the fish and game facts, which stipulation is as follows:

"(1) That the defendant, W. N. Stephens, is, and at all times mentioned in the pleadings herein was, the duly appointed, qualified, and acting state fish and game warden of the state of Idaho, and in relation to all matters referred to in the pleadings in this case the said defendant was acting in his said official capacity.

laws of the state of Idaho. Said scalps were not stuffed, nor were there any mounted heads among the scalps in question, and no work of any kind had been performed on any of them. The plaintiff is not, and was not at the time said scalps were seized by said game warden, a taxidermist, and he did not receive said scalps or any of them as a taxidermist, and said scalps were not accompanied by an affidavit showing that the same were taken from animals killed in compliance with the game laws of the state of Idaho.

"(4) That prior to the commencement of this action on or about the 1st day of June, 1907, the plaintiff demanded of the defendant the possession of all said scalps, and thereupon the defendant refused and still refuses to deliver said scalps or any of them to the plaintiff.

"(5) That said 48 elk scalps and 1 antelope scalp and the calf elk scalp, being the personal property hereinbefore mentioned and referred to, was on the 5th day of October, 1906, at said Sugar City, Idaho, of the value of $412.50, being the time and place that said property was taken possession of by said defendant as such state fish and game warden aforesaid.

"(2) That on the 1st day of October, 1906, the plaintiff had in his possession in the state of Wyoming the personal property described in his complaint herein, to wit, 48 elk scalps and 1 antelope scalp and 1 calf elk scalp, which scalps were taken from the carcasses of wild elk and antelope killed in Jackson's Hole, Uinta county, state of Wyoming. Said scalps were by plaintiff on or about October 1, 1906, closely packed in a dry goods box in Jackson's Hole, Uinta county, Wyo., in the condition they were in when taken from the wild animals, and the box was nailed up so that the contents of the box could not be discovered except by breaking the box open. The box with the scalps | in it was then loaded into a wagon in said Jackson's Hole and hauled by team from there to the shipping station of the Oregon Short Line Railroad Company at Sugar City, in Fremont county, Idaho, the nearest rail- "(6) That said personal property hereinberoad station to the point where said elk and fore referred to has not been taken for a antelope were killed, and plaintiff herein in tax, assessment, or fine, pursuant to a statperson delivered said box with the scalps ute, except in so far as the statutes relatconcealed in it, as above stated, to the agent ing to the protection of fish and game auof said Oregon Short Line Railroad Company thorized and justified said defendant, as such at said Sugar City, on the 4th day of Octo-state fish and game warden, to take the same, ber, 1906, and, upon being asked what the or seized under an execution or an attachbox contained, the plaintiff informed said agent, G. F. Johnson, that the same contained household goods,' and that he desired the same billed and shipped as 'household goods' over said railroad from Sugar City, Idaho, to Los Angeles, Cal., and thereupon the said agent, in order that the said scalps might be shipped over said railroad as directed by plaintiff, billed the same as 'household goods' and marked on the said box the address and words 'household goods.'

"(3) The said defendant, upon learning the foregoing facts, went to said station of the Oregon Short Line Railroad Company, on the 5th day of October, 1906, at Sugar City, Idaho, and opened said box, and found in said box the scalps referred to in the complaint in this cause, and seized and took the same into his possession as said state fish and game warden, and still retained the same in his possession. That, when the defendant took said scalps out of said box, they had no marks or tags of any kind on them, and there were no other marks on the box except

ment against the property of said plaintiff. It is further stipulated by and between the parties that the foregoing stipulation shall constitute the entire evidence in this cause in the trial of the same in said court and also on appeal to the Supreme Court of Idaho, if the same be taken on appeal, and the said stipulation is hereby made a part of the judgment roll in this cause."

The court adopted said stipulation of facts as its finding of facts, and, in addition thereto, made the following findings of fact:

"(7) That none of the allegations in plaintiff's complaint are true except as hereinbefore set out in these findings of fact, and all of the allegations and denials of the defendant's answer are true as hereinbefore set out in these findings of fact.

"(8) That the plaintiff was not at the times mentioned in plaintiff's complaint at Sugar City, in Fremont county, Idaho, or at any other place, the owner or entitled to the possession of the 48 elk scalps, or any of them, or the 1 antelope scalp, or the 1 calf

elk scalp, described in and referred to inmitted to do. The game warden, under his plaintiff's complaint herein.