Worner v. Abraham

Weaver, J. [1278] 1. Appeal and error : review: presumptions: testimony not included in abstract. 2' «'<• fficting "verdicts, [1277] The record presented by appellant’s abstract includes no part of the evidence, and we must, there [1278] fore, presume that the testimony was such as to justify the submission of the issues to the jury, with the instructions given by the court. Under those instructions, they were authorized to find for the plaintiff for the amount of the check sued upon. They were also authorized to find that the attachment sued out by him was issued wrongfully, and in such case, the jury was informed that defendant would be entitled to recover his actual damages, if any, and that, if the attachment was malicious, as well as wrongful, it would then be proper assess exemplary damages in defendanta favor. With the instructions, the court submitted forms of verdict as follows: “1. We, the jury, find for the plaintiff in the sum of $-. -, Foreman. “2. We, the jury, find for the defendant in the sum of $-. -, Foreman. “3. We, the jury, find for the defendant. -, Foreman. “á. Interrogatory. What amount, if anything, do you award the defendant as exemplary damages? -, Foreman.” When returned into court, it appeared that the jury had used the forms we have marked 1 and á-, filled each with the same amount ($105.80), and had signed each by their foreman. [1279] 3. new trial : grounds in Consistent*11" speciai finding. [1278] It would doubtless have been proper for the court to have called the jury’s attention to this apparent confusion, and have sent them back to the jury room, with instructions, which Avould enable them to make their verdict free from doubt. But as this was not done, and as no demand was made therefor by either party, the court was well within its discretion, acting even on its own motion, in order [1279] ing a new trial. Of this, plaintiff is hardly in position to complain; for, if the court had been required to enter judgment on the verdict as returned, it could not, in our judgment, properly have ignored or rejected the special finding, and the judgment must have been in favor of defendant. 4. Appeal and error : decisions reviewable : granting new trial: abuse of discretion must be shown. The rule by which this court refuses to interfere with the action of the lower court in granting new trials, except where abuse of discretion is shown, is too familiar for the citation of authorities. The rule is peculiarly applicable where the record of the trial is not before us. The assignments of error are not well taken, and the order appealed from is — Affirmed. Ladd, C. J., Gaynor and Stevens, JJ., concur.