Clements v. Knight & Co.

Wood, J. (after stating the facts). (1) The appellant’s objection and exception was tantamount to an appeal from the order of the court setting aside the verdict and granting the appellee a new trial’ The court did not abuse its discretion in granting the appellee a new trial. There was á decided conflict in the evidence as to whether or not the note had been paid. Witnesses on behalf of the appellant testified that the property included in the deed of trust given to secure the note in suit was sold for an amount sufficient to pay the note in full, but, on the other hand, a witness for the appellee testfied that, although the property was sold, it did not bring a sufficient amount to pay the note. The court doubtless concluded that the testimony on behalf of the appellee was of greater weight than the testimony on behalf of appellant and that the verdict of the jury was therefore contrary to the preponderance of the evidence. (2) In several recent cases we have held that, “Where there is substantial or decided conflict in the evidence this court will leave the question of determining the preponderance of the evidence to the trial court and will not disturb or overrule the same.” Taylor v. Grant Lumber Co., 94 Ark. 566; Blackwood v. Eads, 98 Ark. 304; McDonnell v. St. L. S. W. Ry. Co., 98 Ark. 334; McIlroy v. Ark. Valley Trust Co., 100 Ark. 596-599. (3) The trial court was justified in concluding that the verdict of the jury was not sustained by a clear preponderance of the evidence. Hence, it cannot be said that the trial court thoughtlessly and without due consideration set the verdict aside. The judgment of the circuit court is therefore affirmed, and judgment will be entered here in jiavor of the appellee in the sum of $1,342.10, with interest at 6 per cent, from the 18th day of January, 1913.