Security State Bank v. Bank of Centerville

•SHERWOOD, J. This action is on a certificate'of deposit for $9,375, issued by the Bank of Centerville: on October 3, 1919, to W. W. Ross, due 12 months after date. The certificate was indorsed and delivered to plaintiff for value, and before due. The names of W. W. Ross and Wm. M. Colby were written on the back of the certificate when plaintiff received1 it. The certificate was not paid when -due. Suit was brought. Defendant Ross denied he ever indorsed or delivered the certificate to any person' and alleged his name indorsed thereon was a forgery. The case was tried to a jury. Verdict was rendered for defendant. Plaintiff moved to set aside the verdict and for a new trial, on the ground of insufficiency of the evidence to justify the verdict, because the only question submitted to> the jury was “did W. W. Ross indorse this certificate,” and “the testimony of the plaintiff’s .witnesses, Win. Colby, H. Shoulberg, A,. R. Buswell, E. PI. Youngstrom:, IT, A. Gross, J. A. Weiland, K. I. S’hager, and T. L. Youngers, is all to- the effect that this indorsement is in the handwriting of the said Ross, and there ip'no'evidence sufficient to the contrary. -W. W, Ross himself could not testify that this was not his handwriting, but the, effect of his testimony merely is that'he has no recollection of signing such an instrument.” [442] Motion for new trial granted and1 defendant appeals. The only question presented by this appeal is: ‘-‘Did the trial court abuse its discretion by. granting a new trial ?” This court has said that “an application for a new trial upon the ground of the insufficiency of the evidence to support the verdict is addressed to the sound discretion of the trial judge, and his discretion will only be reviewed by this, court in case of manifest abuise of that discretion.” Distad v. Shanklin, 11 S. D. 1, 75 N. W. 205; 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. 150, 60 N. W. 743; Esshom v. Hotel Co., 7 S. D. 77, 63 N. W. 229; Gotzian & Co. v. McCollum, 8 S. D. 186, 65 N. W. 1068; 16 Am. & Eng. Enc. Law 693; Root v. Bingham, 26 S. D. 118, 128 N. W. 132; Gamble v. Keyes, 39 S. D. 592, 166 N. W. 134; Schoof v. Hoagland, 44 S. D. 184, 183 N. W. 132; Pinch v. Martin, 13 S. D. 274, 83 N. W, 263. And' has further said: “A clearer case is required to authorize the reversal of an order granting” a motion for a “hew trial than is required to reverse an order overruling” such motion. Hodges v. Bierlein, supra; Halpin v. Nelson, 76 Iowa 427, 41 N. W. 63; Blewett v. Hendry, 37 S. D. 106. 156 N. W. 795. ’ The only question presented to the jury was whether the name of W. W. Ros,s on the back of the certificate of deposit, “Exhibit A,” was his genuine signature. Upon this question 10 wtinesses gave testimony. The testimony of the cashiers of all three banks in the town near which defendant had lived for over 20 years, Who were all well acquainted with defendant, two of them for 20 years or more, men, who. had seen him write his name frequently, cashed his checks often, for years, with two of which banks defendant had done his quite extensive banking business for many years, and with one of which he was then doing his banking, wlas that they each considered it the signature of defendant and would have paid money on it if presented at their banks. Three 'cashiers of banks in the city where the case was tried testified according to their best judgment it was defendant’s genuine signature. One expert testified it was without doubt defendant’s genuine signature. Another witness testified he personally saw defendant sign that name upon that certificate. In [443] opposition to this, defendant testified alone that it was not his signature. But he also testified that he could not tell by the signature itself whether he signed 'it or not and could only tell by looking at the contents of the paper; that he could not always tell ■his own signature, and that this signature looked like his writing. Defendant’s son, whom he offered as a witness, testified the signature looked like defendant’^, and! he could not tell whether it was or not. He was sure it was not signed on the day plaintiff ■claimed 'it was signed, and he never saw defendant sign it. ■Considering defendant’s interest in this case, the peculiar nature of his testimony, the great preponderance in the number of unimpeached witnesses against him', we cannot say the lower court abused its discretion in granting a new trial. The trial judge saw most of the witnesses, noted their demeanor on the witness standi, heard them testify, and was in a better position to correctly weigh their evidence than we are. When, in .'his view, the interests of justice will be subserved by granting a new trial, that decision should not be lightly overturned by this court. We cannot agree with our colleague that this appeal presents only the question, whether or not the evidence is sufficient to sustain the verdict, or that it is to be determined by us on our belief or disbelief in the veracity of one of the witnesses produced by the plaintiff. It is settled law in this state that the sole question before the appellate court on an appeal from an order granting a new trial is: Did the trial court abuse its discretion in granting a new trial ? If it did not, the trial court must be sustained. Distad v. Shank-din, supra, and other decisions of this court there cited. Neither can we agree that the question presented to this court on appeal is the same as that presented to a trial judge on motion for a new trial. In considering this question, the late Judge Corson said: “But the tidal court is vested with much larger discretionary powers in denying or granting a new trial than is possessed by this court. The trial court may pass upon the weight of the evidence, and determine, in view of all the circúmstances, in the case, whether or not a new trial should be granted.” Western Surety Co. v. Boettcher, 39 S. D. 541, 165 N. W. 381; Rex Buggy [444] Co. v. Dinneen, 23 S. D. 474, 122 N. W. 433; Finch v. Martin, 13 S. D. 274, 83 N. W. 263; Dickinson v. Hahn, 23 S. D. 65, 119 N. W. 1034; Ross v. Robertson 12 N. D. 27, 94 N. W. 765; Clifford v. Latham, 19 S. D. 376, 103 N. W. 642; Unzelmann v. Shelton, 19 S. D. 389, 103 N. W. 646; Schoof v. Hoagland, 44 S. D. 184, 183 N. W. 132. In Drew v. Lawrence. 37 S. D. 625, 159 N. W. 276, this court said: “Inasmuch as the law presumes that a new trial of a cause will result in a just judgment, there is vested in the trial courts a w-i-de discretion to set aside verdicts and grant new trials, which discretion will seldom he disturbed by an appellate court, even though from reading the record on appeal, it appears that the jurymen fairly exercised the reasoning faculty in arriving at their verdict.” Shuman v. Lesmeister, 34 N. D. 209, 158 N. W. 271; Ede v. Ward, 32 S. D. 351, 143 N. W. 269. We are unaJb-le to- see how the return of this case to the circuit court, to be tried before another jury can he a denial of the constitutional right to a jury trial. The order of the circuit court, granting a new trial, is affirmed. ' ■