Hoffman v. Doolittle

Cole, C. J. The power of the county court at the same term to modify its order granting a new trial cannot well be doubted. The learned counsel for the appellants says that the order in the first instance was made by consent, the counsel and the court being under a misapprehension as to the rule established by this court in such cases. This may have been so. The county court certainly seemed to be under the impression that it would be error to require the payment of costs of the former trial as a condition to granting a new trial. But when attention was called to the matter on the motion made for that purpose, the court modified its order, as it had the clear right to do, by adding thereto the condition that the defendants pay the taxable costs of the former trial. ■ These were the usual terms. This coxirt has held in a number of cases that, ordinarily, a new trial should only be granted on the condition that the moving party pay the costs of the former trial. Carroll v. More, 30 Wis., 574; Pound v. Roan, 45 Wis., 129; Smith v. Lander, 48 Wis., 587. A departure from this rule is only sanctioned in case of a perverse verdict, as in [507] Emmons v. Sheldon, 26 Wis., 648. There is no ground whatever for saying, in this case, that the verdict is a perverse one; that is, that it must have been the result of a crooked or distorted judgment, on the part of the jury, of the facts proven on the trial. It was doubtless an honest verdict, not without evidence to support it. Under the circumstances it would be improper for us to indicate whether we 'deemed it warranted by the weight of testimony. By the Court.— The order of the county court must be affirmed.