Morrow v. Letcher

Haney, J. This appeal is from an order granting a new trial. One ground of the application was insufficiency of the evidence to justify the decision. An application for a new trial for this cause is addressed to the sound discretion of the trial judge, and his action will be reversed by this court only when there is manifest abuse of such discretion. A stronger case must be made to justify a reversal when a new trial has been granted than when it has been refused. Hodges v. Bierlein, 4 S. D. 258, 56 N. W. 811; Alt v. Railway Co., 5 S. D. 20, 57 N. W. 1126; Grant v. Grant, 6 S. D. 147, 60 N. W. 743. This rule is applicable to the case at bar. Defendant, Minnie H. Letcher, appears to have succeeded to the rights of A. M. Bowdle. So far as such rights rest upon the transfer from Matilda H. Letcher to Bowdle, they are subject to the lien of plaintiff’s j udgment, and the only real controversy concerns the tax title taken by Bowdle in the name of Burright. Plaintiff alleges that the property was transferred by Matilda H. Letcher to Bowdle to secure certain obligations and liabilities due him from George E. Letcher; that he held it as mortgage security, and not otherwise, and therefore was incapable of acquiring a tax title. These allegations upon which plaintiff predicates the invalidity of the tax title are denied. The conveyance from Matilda H. Letcher to Bowdle is absolute upon its face. If it W.as what it purported to be, it vested in the grantee an estate 35 in fee simple, subject, of course, to the lien of plaintiff’s judgment. The burden was with plaintiff to show that the transfer was in fact a mortgage. Doubtless the evidence strongly tends to support plaintiff’s contention, but it cannot be said that the facts concerning Bowdle’s relations to the property are undisputed, or that it was a manifest abuse of discretion to grant a new trial. In transmitting the order granting a new'trial to plaintiff’s attorney, the trial judge appears to have inclosed a letter wherein certain reasons are assigned for his action. Respondent, by an additional abstract, properly raises the question whether such letter is a part of the record. It is not in the bill of exceptions, does not appear to have been filed with the clerk, and certainly was not intended to be a decision upon a question of law, under Chap. 72, Laws 1893. We conclude it is not in the record, and cannot be considered. Comp. Laws, 5103, The order appealed from is affirmed.