McIntire v. Tyson

Jackson, Judge. 1. In this case the city court granted a new trial. We will not control its discretion in granting it on the ground that the evidence is decidedly against the verdict. No great harm can be done. Besides, we think the verdict is against the weight of the evidence, though perhaps the verdict could be sustained. 2. A motion was made to dismiss the motion for a new trial because no rule nisi had been granted. The plaintiffs in error, after the lost papers had been established, waived service of the rule nisi. The object of the rule nisi was to bring them before the court. After they came -in, having waived service of the rule nisi, it is too late to object and move to dismiss because it had not been granted sooner. The statute does not require the rule nisi to be granted and served at the first term. The motion was then regularly made and the brief of evidence approved. And after the parties had waived service, and the cause had been continued for their absence, it was too late for their motion. The rule nisi could then have been granted at the discretion of the court, and served, and it would have been done, doubtless, but for his waiver. We affirm the judgment.