Eaton v. Woydt

Cole, J. The verdict in this case was so clearly against the evidence, that we think it should have been set aside and a new trial granted. It is suggested, in support of the finding of the jury, that there was no satisfactory proof of the fact that the defendant was, at the commencement of the action, in the possession of the premises claimed by the plaintiff'. But the evidence was abundant and clear that the defendant’s father was in possession when the suit was commenced. Delaney says that Emil Woydt occupied the store on lot 40 in Calumet village when he (witness) removed from that place in the spring of 1854; and, further, that he saw him there two or three years after he moved away. North testified that Emil Woydt occupied the store on the lot at the time of his death, and did several years previous. He did not [385] know the exact year Woydt died, but thought “it was four or five years ago.” Now, when it appears that the father was in the possession of the premises just before the suit avus commenced, and was in possession after that time, the law presumes that the same state of things continued to exist in the intermediate period, until the contrary is shown. 1 Greenl. Ev. § 41. The verdict was so entirely against all the evidence in the case, that we must hold the circuit court erred in refusing to set it aside and grant a new trial. By the Court. — The order of the circuit court is reversed, and a new trial awarded.