State Senator James A. Carley represented the bank, declared his arguments that the jury was influenced at the time of the trial by the heat of excitement surrounding the closing of the bank and particularly by one of the jurors who revealed statements following the trial that he was prejudiced against the bank.
The senator pointed out that a story was being circulated at the time of the trial to the effect that immediately preceding his disappearance, Sylvester had gone to the home of a widow in Plainview and had procured from her some $500 and pocketed the funds. The fact in the matter, were Carley said, that the woman had gone to the bank and made a deposit and had received a certificate of deposit.
The new evidence discovered, it is said, is that which would be given by E. L. Sylvester, now serving a term in the state penitentiary at Stillwater. An affidavit signed by Sylvester after his return by authorities from Mississippi, sets forth that Sylvester would testify that the note of Austin had never been paid. It is maintained that Sylvester’s testimony was the only evidence that could have been introduced to offset the statements by Austin in the trial. Since he was out of the state at that time and his whereabouts unknown, it was impossible to produce him. Hs testimony now is available and justified a new trial, it is maintained.
Attorney W. C. Strickland of St. Paul, counsel for Austin, maintained that any testimony Sylvester might give would be impeaching testimony and not new evidence. He further declared that such testimony as he would give, as maintained by the plaintiff, would make him an embezzler and he would hardly be likely to give it.
An affidavit, signed by Strickland himself, set forth that he had clearly indicated the nature of his defense in the answer to the complaint and that a request for more time to prepare the answer of the defendant had been denied by Mr. Carley. It was pointed out to the court that the plaintiff should have demanded a new continuance if he considered that he was unprepared to present the necessary evidence to meet the defense. Failure to do this does not entitle him to a new trial, Mr. Strickland maintained.
Preceding the hearing, Mr. Stickland introduced two motions to strike out of the evidence affidavits of two jurors setting forth what transpired in the juryroom during the jury’s deliberations on the case. The second motion demanded striking out of an affidavit of John J. Jacobs, deputy sheriff, setting forth statements made to him by one of the jurors relative to his views on the case.
It was pointed out that affidavits of jurors are not admissible in evidence in a motion for a new trial. The Jacobs affidavit was declared to be only hearsay evidence.
Both motions were also taken under advisement by Judge Finkelnburg.
March 19, 1926-
A new trial has been granted by Judge Karl Finkelnburg to the Plainview State Bank in its appeal from the adverse verdict of a jury in the suit against Harry G. Austin of Plainview, on the ground of newly discovered evidence available since the capture and imprisonment of E. L. Sylvester, former president of the bank.
The new trial was granted after a hearing held at Winona on Feb. 27, in which Senator James A. Carley, attorney for the defunct bank, made a motion for a new trial on the ground of the new evidence of Sylvester and of prejudice on the part of the jury. Inasmuch as the new trial was granted on the former ground, the court did not consider the latte part of the motion.
In commenting on his decision Judge Finkelnburg declared that he could not agree with counsel for the plaintiff, Paul G. Strickland of St. Paul, that testimony of Sylvester would be of value for impeachment of Austin’s testimony only. On the contrary, he asserted, Sylvester’s testimony would be the only other direct testimony besides

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