Avery v. Holliston

ELLIOTT, J. In an action of replevin to secure possession of a horse, the jury returned a verdict for the plaintiff, and thereafter the court set aside the verdict and granted a new trial. The question at issue was whether there had been a sale of the horse to the plaintiff, and in the order setting aside the verdict the trial court stated that in his opinion the evidence did not justify the verdict, and also that he had erroneously instructed the jury as to what was necessary to show a sale of the horse. We think the instruction as given was correct, and therefore the court would not have been justified in granting a new trial on the [179] ground stated as an error of law. But, regardless of this erroneous reason thus given, the order must be sustained, in view of the fact that m the opinion of the court the evidence did not justify the verdict. An examination of the record fails to show that the evidence was manifestly and palpably in favor of the verdict, and therefore, under the well-known rule, the discretion of the trial court must be approved. Order affirmed.