Lewellen v. Williams

y the Gourt, Dixon, C. J. Appeal from an order granting a new trial on the ground of surprise. Notwithstanding the observations of the court in Chamberlain vs. Railroad Co., 7 Wis., 429, upon the provision of the Code giving an appeal from an order granting or refusing a new trial, all the subsequent cases have proceeded according to the former practice, and no such order has been reversed except upon the ground that there was manifest abuse of discretion, or that some settled principle of law had been violated. 7 Wis., 475; id., 498; 10 Wis., 440; id., 505. Upon mature deliberation, we have concluded that the practice indicated by the latter cases is correct, and that it was not the intention of the legislature to invest this court with the discretionary powers exercised by judges at nisi prius. A practice which has so long obtained, and the operation of which has been found so salutary and useful in the administration of justice, ought not to be abolished, except by words showing clearly and manifestly that such was the intention of the legislature. The exercise of a sound discretion in such matters often depends upon a variety of facts and circumstances which cannot be described on paper and brought before the appellate trx693 bunal with their original force and influence, and which no one but the judge before whom the case was tried can fully» and properly estimate. Many of these facts and circumstances are absolutely incapable of such delineation, and to say that the discretion depending upon them shall be transferred to another court, there to be exercised without the means of forming a correct judgment, seems impossible. Courts went far enough when they held that they could only correct, on error or appeal, such an abuse of discretion as was clearly and unmistakably manifested by the facts before them, and which it was apparent could not be justified by those facts which did not appear. Heretofore, as a writ of error did not lie to such an order, the successful party, whose verdict was set aside, was without a remedy, though there was never so gross an abuse of discretion or violation of legal principles in granting the motion. This was an evil which required cor rection, and in our judgment it was for that purpose that an appeal was given. Governed by this rule, although we are not, upon the facts before us, fully satisfied that a new trial should have been granted, yet we cannot say that there was an abuse of discretion. The affidavit of the defendant shows an apparently good defense to the action, and the case discloses no such gross or inexcusable negligence on his part, as to entirely disentitle his application to consideration at the hands of the court The circuit judge could best determine whether, under all the circumstances, there was probable ground for believing that he was taken by surprise. The order was made on the most favorable terms possible to the plaintiff, and must be affirmed. Order affirmed.