Schumaker v. Gelpcke

Wright, J. Defendant moved for a new trial upon the ground that he was taken by surprise by certain testimony introduced by plaintiff. The Court in the exercise of its discretion, a discretion wisely lodged with the judge trying 85 the cause, in such cases, determined that there had been such surprise. With this discretion we would not interfere, unless well satisfied it had been abused.1 Nothing of the kind appears iu this instance and we have therefore no hesitation in concluding that the order granting a new trial should stand undisturbed. Footnotes [1] To justify a roversal of an order granting a new trial, a stronger case of abuse or injustice must be made than is required in cases in which a new trial is refused. Newell v. Sanford 10 Iowa 396. Caffrey v. Groome Ib. 548. But when the ruling of tho Court below is made upon a logal proposition, it is not a matter of discretion, and will bo. reviewed with tho same strictness when tho new trial was granted as when it was refused. Ruble v. McDonald 7 Ib. 90; Shaw v. Sweeny 2 G. Greene 587. In addition to the authorities cited by counsel see Brazelton v, Jenkins, Mor. 15; Jourdan v. Reed 1 Iowa 135; Freeman v. Rich Ib 504; Hendricks v. Cooper & Wallace 7 Iowa 232. Speers v. Fortner 6 Ib. 553; Lloyd v. McClure 2 G. Greene 139; Millard v Singer Ib. 144; Humphreys v. Hoyt et al 4 Ib. 245; Powers v. Bridges 1 Ib. 235; Pelamourges v. Clark 9 Iowa 1; Stewart v. Burlington & Missouri River Rail Road Company, ante.