Monmouth Pottery Co. v. White. judgment, is the preponderance of the evidence. As this record shows a substantial conflict in the evidence, the only question for our determination is, did the district court abuse its discretion in overruling appellant's motion for a new trial? The affidavit of A. G. Horn, filed in support of appellant's motion for a new trial, recited, in substance: That he is the attorney for the plaintiff (appellant), and had charge of all proceedings; that on the 19th day of February, 1903, at Ogden City, Utah, he, in company with two employees of the Ogden Transfer Company, went to the defendant's place of business in said Ogden City, for the purpose of taking possession of the goods. mentioned and described in the pleadings, findings, and judgment in this action, to wit, 310 half-gallon fruit jars and covers, 325 one-gallon fruit jars and covers, and 300 two-gallon fruit jars and covers; that defendant stated to affiant that the goods were all in a pile together, and then and there pointed out a large pile of crockery as the goods; that, on separating said crockery according to size, he discovered that none of the said halfgallon fruit jars was found on hand, and only 65 of the one-gallon fruit jars, and nearly all of the two-gallon jars, the balance of said jars, as affiant believed, having been sold and disposed of by defendant; "that said defendant, during the course of the trial of said cause, testified that all of said goods were stored in his cellar or basement, and that none of said merchandise had been sold or disposed of; that affiant relied upon the statement of the said defendant that he would truthfully testify with reference to said merchandise and its disposition, and he could not with reasonable diligence have discovered and produced the evidence aforesaid, nor the fact that said defendant had sold and disposed of said goods." The two employees of the transfer company who were present and assisted in sorting and separating the crockeryware at the time and place mentioned in the foregoing affidavit made affidavits to the same facts respecting the amount and kinds of crockeryware in Monmouth Pottery Co. v. White. question that the respondent had on hand on that occasion. It appears from the record that respondent in July, 1901, notified appellant that he would not receive and pay for the goods in question, and that they would 2 be held subject to appellant's order. Suit was commenced in January, 1902, to recover the price of the goods, and judgment entered December 18, 1902. On February 19, 1903, three months after the cause was tried and judgment entered, appellant's attorney went to respondent's place of business, and discovered the facts set out in the affidavits filed in support of the motion for a new trial. During all this time appellant made no effort to examine the goods over which the controversy arose, to ascertain what disposition, if any, had been made of them, notwithstanding they were in the same city in which the cause was tried. Under these circumstances we do not think that the degree of diligence has been shown in this case that the law requires in order for a party to excuse himself for not producing the newly discovered evidence at the trial. And further, even though appellant had used due diligence to produce the evidence mentioned in the affidavits, 3 it would not be entitled to a new trial, as the affidavits themselves do not contain facts sufficient to warrant it. For aught that appears in the affidavits, respondent, at the time of trial, may have had on hand all of the goods mentioned in the affidavits. A motion for a new trial is always addressed to the sound discretion of the trial court, and, unless it clearly appears that there has been an abuse of dis4 cretion, the action of the trial court will not be disturbed. State v. Haworth, 26 Utah 310, 73 Pac. 413, and cases cited. It clearly appears that in this case there was no abuse of discretion whatsoever. The judgment is affirmed; the costs of this appeal to be taxed against appellant. BASKIN, C. J., and BARTCH, J., concur. Twiggs v. Land Commissioners. AGNES J. TWIGGS, Respondent, v. THE STATE BOARD OF LAND COMMISSIONERS, Appellant. No. 1495. (75 Pac. 729.) 1. Public Lands: School Lands: Rights of Occupant; Purchaser from Occupant: Statutes: Construction. All statutes relating to the same subject-matter, which are not necessarily inconsistent with each other, are to be construed together as constituting one act, and when it can be done with any reasonable construction, made to harmonize. 2. Same: Repeal: Retroactive Effect. Revised Statutes 1898, section 2337, provided that settlers who had resided upon lands granted to the State for school purposes, prior to the extension of United States surveys over such lands, might be permitted to purchase them at a price not less than 25 per cent. of their appraised value. In 1899 the entire law of which this section was a part, except section 2337, was repealed by Session Laws 1899, p. 95, chapter 64, section 48, waich provided that such section should remain in force until all applications filed by virtue of the same should be fully disposed of. Subsequently, and at the same session, chapter 88 (page 165) was enacted, providing that settlers who had resided on lands granted to the State for school purposes prior to certain dates might be permitted to purchase the lands at not less than 25 per cent. of the appraised value, provided that the purchase price should not be less than $1.25 per acre. Held, that chapter 88 did not repeal section 2337, nor operate retroactively to the prejudice of parties who had filed on school lands in pursuance of such section, as they were expressly provided for by chapter 64. 3. Same: "Occupant” not Same as "Resident." Under Revised Statutes 1898, section 2337, providing that settlers who had resided on, occupied, or cultivated land granted to the State for school purposes should have a preference right to purchase the same, it is not necessary that a person shall actually reside upon the land in order to be an "occupant" thereof. 27 Utah 16 Twiggs v. Land Commissioners. 4. Same: Rights of Purchaser from Occupant. One who has purchased a possessory right from an original settler is entitled to the same privileges and benefits under Revised Statutes 1898, section 2337, giving settlers on school lands, or those purchasing from them, a preference right to their purchase on specified terms, as his grantor would have had had he continued in possession of the land, and not parted with his interest therein. (Decided February 9, 1904.) Appeal from the Third District Court, Salt Lake County.-Hon. S. W. Stewart, Judge. Application for a writ of mandate against the State Board of Land Commissioners to compel said board to award to plaintiff the preference right to purchase a certain piece of land situated in Salt Lake County and also to award to and credit plaintiff with the value of certain improvements on the land. From a judgment in favor of the plaintiff, the defendant appealed. AFFIRMED. Hon. M. A. Breeden, Attorney-General, and Hon. W. R. White, Deputy Attorney-General, for appellant. N. V. Jones, Esq., for respondent. STATEMENT OF FACTS. Plaintiff brought this action to obtain a writ of mandate against the State Board of Land Commissioners to compel said board to award to plaintiff the preference right to purchase a certain piece of land situated in Salt Lake county, and consisting of 17.4 rods; also to award to and credit plaintiff with the value of certain improvements on the land. The case was tried and decided by the trial court upon documentary evidence and the following stipulation or agreed statement of facts: "It is hereby agreed by the parties hereto that this cause may be heard, considered, and determined by the Twiggs v. Land Commissioners. court upon the following statements of facts, together with such other evidence as may be admitted by the court. It is admitted: (1) That the premises described in plaintiff's petition herein filed are a part of the school lands allotted to the State of Utah lying and being in section sixteen (16), township one (1) south, range one (1) east, Salt Lake Meridian. (2) That there are no adverse claimants to said premises other than plaintiff, and the same has not been sold, and is still the property of the State of Utah. (3) That plaintiff, within the time and in the manner prescribed by law, duly made and filed her application with the defendant for the preference right to purchase said premises at the appraised value thereof, and at 25 per cent. thereof. (4) That said application of plaintiff to purchase said premises was denied by defendant, and plaintiff was duly advised of the same on, or soon after, the 21st day of June, 1898. (5) That said improvements were appraised in the sum of eighty-one dollars and ten cents ($81.10) by the defendant board, as appears from the books and records of the defendant board of commissioners, and the same have not been awarded or credited to plaintiff. (6) That said premises and improvements have been duly appraised, and said appraisement has been duly approved by the defendant. (7) That plaintiff's grantors have occupied said land continuously from the month of August, A. D. 1867, to or about September 26, A. D. 1895, at which time it was duly assigned to the petitioner herein." The court made and filed its findings of fact in accordance with the foregoing stipulation, and as a conclusion of law found: (1) That the plaintiff has the preference right, and is entitled to purchase from the State the land described in her petition at 25 per cent. of the appraised value thereof; (2) that plaintiff is the owner of and entitled to the value of the improvements upon said land, and to have the same credited to her upon the books of the defendant board. Judgment was entered in favor of plaintiff directing that defendant board recognize |