Siebert v. Mainzer

Berry, J. This is an appeal from an order by which a new trial appears to have been granted, upon the ground that the verdict is not justified by the evidence. For the reasons given in Hicks v. Stone, 13 Minn. 434, the opinion of a trial court upon a motion for a new trial upon this ground is entitled to great weight, and,- as remarked in that case, it is only when, upon a careful perusal of the testimony, and upon mature reflection, we feel satisfied that the preponderance of -the evidence is manifestly and palpably in favor of the verdict, that we should deem it our duty to reverse an order granting a new trial. In this case the verdict is manifestly against the weight of evidence, so much so that we can easily conceive how the -trial judge might well have concluded that there was no evidence in the case having a reasonable tendency to sustain the verdict. There is a little testimony, of a somewhat ambiguous character, which, by a person looking only at the return made to this court, might be understood to have a slight tendency to support the verdict; but the judge who tried the case had opportunities so much better than we possess for perceiving exactly what was meant by it, that we are not disposed to question his opinion that in fact it did not have the tendency spoken [105] of. See Kansas Pacific Ry. Co. v. Kunkel, 17 Kansas, 145. We cannot say that the order was erroneous. In granting the new trial the court below gave the moving party costs. This was a matter within the court’s discretion, which there is no reason to suppose was abused. Laws 1867, •c. 82. (Gen. St. 1878, c. 67, § 9.) The respondent’s counsel desires us to consider and pass «upon the legal effect of certain orders for’ the payment of money, which were put in evidence in the case. No error of -■the court below, with respect to the orders, is assigned by the -■appellant. The new trial was not granted with reference to them, and the brief of the appellant contains no allusion to them. We think the question of the effect of the orders is not properly before us. Order affirmed.