Bowen v. Malbon

Cole, J. It appears that the motion for a new trial was heard upon the “ minutes of the judge,” as well as upon the affidavits returned on this appeal. Those “ minutes” are not before us, as they should be, in order to enable us to say that the new trial was improperly granted. We must presume, in the absence of these minutes, that a new trial was properly allowed, and that the circuit court decided rightfully upon the matters before it. It is true, the order granting a new trial recites, as a reason for granting it, that it appeared to the court that McCurdy was disqualified to act as a juror on account of existing consanguinity with Buckstaff. Now it is contended that the affidavits show most conclusively that no consanguinity existed between those persons. Grant that this is so, and yet how can we assume that if the whole case were before us upon which the circuit court acted, it would appear that a new trial ought not to be granted upon some other ground ? Obviously we cannot. We must assume that the matters contained in the minutes amply justified the order granted. By the Court. — The order is affirmed.