Aughenbaugh v. Spellman & Co.

HEFNER, J. This is an appeal from the judgment of the district court of Lincoln county granting a new trial. Spellman & Company brought an action in that court against E. D. Aughenbaugh ‘to recover on an Illinois judgment. The judgment was a judgment upon confession based upon power of attorney alleged to have been executed by defendant. No service of summons was had upon him. The defense was that the power of attorney was a forgery, and that the Illinois judgment was for this reason void. The -jury found in his favor and returned ■ a verdict accordingly. The verdict was, on motion of plaintiff, set aside and a new trial granted. The only issue in the case was as to whether or not the power of attorney upon which the Illinois judgment was based was genuine or a forgery. The evidence was conflicting. A verdict might well have been returned either way. The trial court assigned no special reason for granting the new trial, nor was it requested so to do. It has been repeatedly held that motions of this character are addressed to the sound discretion of the trial court, and that its ruling thereon will not be reversed unless an abuse of discretion is shown. We cannot say that the court abused its discretion in granting the new trial. The judgment is accordingly affirmed. LESTER, O. J., CLARK, V. C. J., and RILEY, CULLISON, SWINDALL, MCNEILL, and KORNEGAY, JJ., concur. ANDREWS, J., absent. Note. — See under (1) 2 R. O. L. 217; R. C. L. Perm. Supp. p. 387; R. O. L. Pocket Part, title Appeal, § 182.