Henneman v. Stoops

PER CURIAM. In this action the trial court granted a new trial on the grounds of insufficiency of the evidence. The defendant has appealed from the order. This court has consistently held that the trial *549 court has a broad discretionary power .in the granting of new trials. This is a power not possessed by an appellate court. ■ Under the holdings of this court the trial court may properly refuse to direct a verdict at the conclusion of all the evidence, and still in the exercise of its discretionary power, and without error, properly grant a new trial for insufficiency of the evidence to sustain the verdict, because of the fact that the trial court, which has heard .all of the evidence and observed all the parties and withesses and their conduct and manner of testifying, may be of the opinion that justice demands a new trial. Drew v. Lawrence, 37 S. D. 620, 159 N. W. 274; Western Surety Co. v. Boettcher et al., 39 S. D. 541, 165 N. W. 381; Northern Bag Co. v. Dakota Plaster Co., 42 S. D. 281, 173 N.W. 726; Frank v. Ruzicka, 45 S. D. 579, 189 N. W. 515; Houck v. Hult et al., 60 S. D. 570, 245 N. W. 469; Reinschmidt et al. v. Hirsch et al., 65 S. D. 498, 275 N. W. 356. We are of the opinion that the rule announced in the above cases must govern the disposition of this present controversy. We have given careful consideration to the evidence, and while we are of the view that there is evidence to support the verdict of the jury, nevertheless, it was within the discretion of the trial court, under the rule above announced, to grant a new trial. The order appealed from is affirmed. All the Judges concur.