Eggen v. Fox

Siebeckeb, J. The only question presented on this appeal is whether the court ruled correctly in ordering a new trial of the case upon its own motion. The power of the court to grant a new trial is unquestioned. The only question for consideration is, Did the court act properly in ordering the new trial? Such action by the court is clearly within' the field of discretion, and is not to be reviewed on appeal unless it appears that there was an abuse of this discretion. The court is presumed to have taken the course it did because it deemed it necessary in furtherance of justice, under the circumstances presented by the ease. He had a full knowledge of the state of the case from which he was required to determine whether a due regard for the rights of the parties [536] and the justice of the cause required that a new trial should be had. It is contended that the court mistook the law applicable to the case, in directing a new trial, in that it appears that the defendant was not entitled to any relief under the pleadings and the evidence adduced. There is nothing in the case to indicate the specific grounds upon which the order was made, and, under this state of the record, it is presumed that the court acted within its discretionary power. Under the pleadings an issue of fact is presented, which must be determined upon evidence before a final decision of the case can be made. A review of the evidence can serve no useful purpose, since the issue of fact must be determined upon such evidence as may be produced upon a retrial. We are persuaded that there was no abuse of discretion in granting a new trial. Van Valkenburgh v. Hoskins, 1 Wis. 496; R. Connor Co. v. Goodwillie, 120 Wis. 603, 98 N. W. 528; Maxon v. Gates, 112 Wis. 196, 88 N. W. 54. This being an appeal from a discretionary order, and there being no abuse of discretion, it must be dismissed. McElroy v. Minn. P. H. Co. 109 Wis. 116, 85 N. W. 119; R. Connor Co. v. Goodwillie, supra. By the Court. — The appeal is dismissed.