Becker v. Holm

Marshall, J. The sole question for consideration on this appeal is, Did the trial court err in setting aside the verdict as to respondent Holm, and granting a new trial, without the imposition of costs as terms ? That turns on what ground the court acted upon in the matter; if merely because the verdict was contrary to the evidence, then the order was erroneous; if because the verdict was perverse, that is, substantially dishonest, the order was properly granted. Smith v. Lander, 48 Wis. 587; Pound v. Roan, 45 Wis. 129. Ro reason for the order is stated therein; therefore, looting to it alone, the presumption is that the verdict was deemed by the trial court against the weight of evidence. Schraer v. Stefan, 80 Wis. 653; Garny v. Katz, 86 Wis. 321. But there is a bill of exceptions, regularly settled, which properly includes the opinion filed by the judge in granting the motion, in which it is stated distinctly that his conclusion was that there was no evidence to support the verdict. The reason thus assigned for the order is before us for consideration as much as the order itself and exception thereto. Without a bill of exceptions, such order could not foe reviewed, as it is not one involving the merits and necessarily affecting the judgment, and reviewable as a part of the record, without being made such by inclusion in a bill of exceptions duly settled. Keller v. Gilman, 96 Wis. 445. So the question first stated comes down to this: Is a verdict to be deemed perverse because there is no evidence to support it which the jury had a right to believe ? That was decided in the affirmative in Schweickhart v. Stuewe, 75 Wis. 157, where the court said, in effect, a verdict wholly unsupported by the evidence must be deemed to have been [283] rendered by the perversity of the jury, and the trial judge, in setting it aside and granting a new trial, is not justified in charging the costs of the former trial to the moving party. ¥e are unable to say, from an examination of the record, that the trial court was clearly wrong in his conclusion that there was no evidence to sustain the verdict, hence the judgment appealed from must be affirmed. By the Court. — Judgment affirmed.