J. & H. Clasgens Co. v. Silber

Cassoday, J. The rule is firmly settled by repeated decisions that the granting of a new trial is very much in the discretion of the trial court, and that its order granting the same will not be reversed unless there clearly appears to have been an abuse of discretion. Schillinger v. Verona, 85 Wis. 595, and cases there cited. The only exception to this rule is where it affirmatively appears upon the record that such order was based upon a misapprehension of the law. Ibid. The case at bar is not within the exception. The motion to set aside the verdict and for a new trial was based upon the records, pleadings, and proceedings in the action, and upon the minutes of the court, and stated eleven specific reasons for granting such motion, to the effect that the verdict, and particularly certain portions thereof, were unsupported by the evidence and contrary to law; that certain of the findings were inconsistent; that proper evidence had been rejected and improper evidence admitted; that improper instructions had been given and proper instructions refused; and for “ other errors, irregularities, and in-sufficiencies.” The particular ground upon which the court set aside the verdict and granted a new trial does not appear from the order appealed from, nor otherwise in the record. Such being the state of the record, it is very obvious that we cannot say that there was an abuse of discretion in granting the new trial. Error is assigned because the trial court refused to render judgment in favor of the plaintiff, regardless of the special verdict. Certainly, that court would not have been justified in rendering judgment in conflict rvith any such findings of the jury as were sustained by the evidence. 360 The utmost extent to wbicb this court has gone in authorizing the trial court to disregard a special verdict wholly unsupported by the evidence-is to set aside such verdict, and then in its discretion, but not as an absolute duty, to enter judgment in accordance with the - undisputed evidence, or, as here, to set aside the verdict. entirely and grant a new trial. Schweickhart v. Stuewe, 75 Wis. 160; Gammon v. Abrams, 53 Wis. 323; Munkwitz v. Uhlig, 64 Wis. 388, 389; Annas v. M. & N. R. Co. 67 Wis. 60. But this court, in the exercise of its appellate jurisdiction, has no such discretionary authority as thus possessed by the trial court. By the Court.— The order of the superior' court of Milwaukee county is affirmed.