Silvernail v. Rust

Pinnkv, ,T. 1. The failure of the court to decide the ca.se at the term at which it was heard did not work a discontinuance or deprive the court of jurdsdiction to decide it at a subsequent term, or even in vacation. S. & B. Ann. Stats, sec. 2422«. Resides, the delay was the act of the court, and should not be allowed to operate to the prejudice. of either party. 2. The act amending sec. 3769, R. S. [Laws of 1891, ch. 216], applicable to the hearing' of appeals in the circuit court in cases such as this, providing that, “upon the hearing of the appeal where there is no new trial in the appellate court, such court shall give judgment according to the weight of the evidence and the justice of the case, without regard to technical errors which do not altcct the merits, and without regard to the finding of the justice,” etc., applies as well to cases where the judgment was given upon the finding of a jury in justice’s court as upon a finding by the justice. The statute extends to all cases “ where there is no new trial in the appellate court,” and authorizes tiie circuit court to review the finding of a jury or justice if not according to the weight of evidence, and disregard it in giving judgment on the appeal. Whether the law providing for such a review upon the facts or the verdict of a jury, with the data afforded for this purpose by the scanty and fragmentary manner in which the testimony is usually returned, with a view to determine whether the finding in the court below is' against the weight of evidence, and of giving judgment according to the opinion of the appellate [461] court thereon, is a judicious enactment, is a question -which, may well admit of a considerable difference of opinion; but, as it is an enactment clearly within the power of the legislature, the question of policy involved is not open for consideration. 8. It appears that there Avas a sale by the plaintiff to the defendant of a feed cutter, belt, and horse-power, upon trial, for the sum of $85; but they did not wozdc to defendant’s satisfaction, and the result Avas that subsequently the defendant elected to retain the feed cutter only, at the price of $38, for Avhich he gave his note. After about a year, the plaintiff came and took the horse-poAver, and the defendant offered him the belt as Avell; but he refused to take it, and subsequently brought this action to recover ii\re dollars, claiming that to have been its price. Evidently, the circuit court aaujs of the opinion that the conditional sale of the feed cutter, belt, and horse-poAver failed, and that by the subsequent arrangement the sale really made AAras of the feed cutter only; and Ave think the evidence supports that conclusion. "We are unable to say that any error is shoAvn by the record, and the judgment of the circuit, court must therefore be affirmed. By the Court.— The judgment of the circuit court is affirmed.