WHITING, J.
Defendant, as sheriff, levied a writ of attachment upon, and afterwards sold under execution, certain horses and farm machinery. This property was levied upon and sold as the property of one W. Ringsdorf. Plaintiff, claiming to be the owner thereof, brought this action to recover the value of said property. Verdict and judgment being for defendant, plaintiff has appealed from the judgment and from an order refusing a new trial.
[1,2] The only assignment we find it necessary to consider is the one assigning the insufficiency of the evidence to sustain the verdict. Before passing to a consideration of the evidence, we-think it best to consider the rule that should govern a court in passing upon a motion to "set aside a verdict because unsunnorted by evidence. At one time it was held that a verdict should not be-[623]*623directed if there was a scintilla of evidence opposed thereto. This rule has been quite generally discarded, and, even where the courts seem to cling thereto, it will be noticed that there has been given to the word “scintilla” an enlarged meaning with the result that even in these courts it takes more than a spark or glimmer of evidence to prevent the direction of a verdict. The generally accepted rule is that laid down in Jewell v. Parr, 13 C. B. 916:
“When we say that there is no evidence to go to the jury, we do not mean that there is literally none, but that there is none which ought reasonably to satisfy a jury that the fact to be proved is established.” Railway Co. v. Lowery, 74 Fed. 463, 20 C. C. A. 596; Jones on Evidence, § 174; Ghamberlayne, Modern Law of Evidence, § 396.
Though a court has omitted or refused to direct a verdict, it does not necessarily follow that the verdict rendered should stands there is no duty more important or obligatory upon a court than the duty to set aside a verdict unwarranted by the evidence. Rochford v. Albaugh, 16 S. D. 628, 94 N. W. 701; Serles v. Series, 35 Or. 289, 57 Pac. 634: Ghamberlayne, Modern Law of Evidence, § 308; Jones on Evidence, § 174.
[3] This court has repeatedly stated that:
“In considering the verdict of a jury in any particular case, to determine whether or not it is sustained by the evidence, we are not to speculate or query how we would have viewed the evidence and testimony, or what verdict we would have rendered had we been of the jury. The real and only question to be solved and answered is, Is there any legal evidence upon which the verdict can properly be based, and the conclusions embraced in and covered by it be fairly reached? It is t'he province of the jury to weigh and pass upon the evidence; to reconcile conflicting testimony; to determine the truth or value of evidence; to ascertain and declare, from all of the evidence and testimony, the facts of the case; and from the facts, when ascertained by them, and the law as given to them by the court, to arrive at and announce their decision, which is their verdict. And we cannot determine what specific evidence they relied upon in reaching that verdict; nor how they reconciled or adjusted conflicting evidence or testimony; nor just wh'at they rejected or doubted: nor the precise weight or effee'- they gave to any particular' * * * item of [624]*624evidence or testimony. * * * This court will, as a general rule, only ask and determine, Is there any legal evidence or testimony which fairly warrants- the verdict of the jury? If there is, particularly in -a case where the evidence is conflicting, the verdict will not be disturbed.; and, if -there is not, the verdict will be set aside.” Brewing Co. v. Mielenz, 5 Dak. 136, 37 N. W. 728; Jeansoh v. Lewis, 1 S. D. 609, 48 N. W. 128; Weiss v. Evans, 13 S. D. 185, 82 N. W. 388.
By so holding have we, in effect, held that a .verdict should not be set aside except where it would have 'been- proper to have directed a verdict for the other side? If such statement is subject to- such construction, it is certainly misleading, as there is a clear distinction between the rule governing the direction of a verdict and that governing the granting of a new trial. Upon a motion to direct a verdict the question is whether there is any “evidence upon which the jury co-uld, without acting unreasonably in the eye of the law, decide in favor of * * * the party producing it” (Bartelott v. Bank, 119 Ill. 259, 9 N. E. 898; Offutt v. Exposition Co., 175 Ill. 472, 51 N. E. 651); while upon a motion to set aside a verdict the question is whether, under all the evidence, the verdict is reasonable “in the eye of the law.” The court in Railway Co. v. Lowery, supra, concludes:
“It seems to us to follow, from b-oth reason and authority, that there is a difference between the legal discretion of the court to set aside a verdict -as against the weight of evidence and that obligation which the court has to- withdraw a case from the jury, cr direct a verdict, for insufficiency of evidence. In the latter case it must be so insufficient in fact as to be insufficient in law; in the former case it is merely insufficient in fact, and -it may be either insufficient in law, or may have more weight, and not enough to justify the court, in exercising the control which the law gives it to prevent unjust verdicts, to allow a verdict to' stand.”
Wigmore gives two reasons why the same rule should not control in setting- aside verdicts as controls in directing- verdicts.’ They are:
“In the first place, because the -mass of evidence in the two-situations is very different (for after verdict the defendant’s evidence has to be considered with the rest), an-d, in the next place, [625]*625because the setting aside of a verdict leads merely to- a new trial, while the ruling of insufficiency leads usually to the direction of a verdict for the opponent.” Wigmore on Evidence, § 2494.
[4, 5] Inasmuch as the law presumes that a new trial of a cause will result in a just judgment, there is vested in the trial' courts a wide discretion to set aside verdicts and grant new Dials, which discretion will seldom he disturbed by an appellate court, even though, from a reading of the record on appeal, it appears that the jurymen fairly exercised the reasoning faculty in arriving at their verdict. Upon the consideration of a motion to set aside a verdict, it is the duty of both trial and appellate courts to consider all the material evidence, tout not to weigh conflicting evidence for the mere purpose of determining the credibility of witnesses — this being- within the sole province of the jury. But when either a trial or appellate court has considered all the evidence, and, so far as reason will permit, resolved the evidentiary facts as well as the inference to be drawn therefrom in favor of the verdict, it is bound to set aside such verdict, whenever it is clear that the jury failed to draw proper inferences from such evidentiary facts or failed to properly weigh, one against another, the inferences that it drew therefrom.
“The same duty of enforcing the rule of correct reasoning which presses upon the trial judge- in his administrative relation to the jury rests upon all reviewing or appellate tribunals in passing upon the action of trial judges -or inferior courts.” Chamber-layne Modern Eaw of Evidence,. § 312.
[6]
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WHITING, J.
Defendant, as sheriff, levied a writ of attachment upon, and afterwards sold under execution, certain horses and farm machinery. This property was levied upon and sold as the property of one W. Ringsdorf. Plaintiff, claiming to be the owner thereof, brought this action to recover the value of said property. Verdict and judgment being for defendant, plaintiff has appealed from the judgment and from an order refusing a new trial.
[1,2] The only assignment we find it necessary to consider is the one assigning the insufficiency of the evidence to sustain the verdict. Before passing to a consideration of the evidence, we-think it best to consider the rule that should govern a court in passing upon a motion to "set aside a verdict because unsunnorted by evidence. At one time it was held that a verdict should not be-[623]*623directed if there was a scintilla of evidence opposed thereto. This rule has been quite generally discarded, and, even where the courts seem to cling thereto, it will be noticed that there has been given to the word “scintilla” an enlarged meaning with the result that even in these courts it takes more than a spark or glimmer of evidence to prevent the direction of a verdict. The generally accepted rule is that laid down in Jewell v. Parr, 13 C. B. 916:
“When we say that there is no evidence to go to the jury, we do not mean that there is literally none, but that there is none which ought reasonably to satisfy a jury that the fact to be proved is established.” Railway Co. v. Lowery, 74 Fed. 463, 20 C. C. A. 596; Jones on Evidence, § 174; Ghamberlayne, Modern Law of Evidence, § 396.
Though a court has omitted or refused to direct a verdict, it does not necessarily follow that the verdict rendered should stands there is no duty more important or obligatory upon a court than the duty to set aside a verdict unwarranted by the evidence. Rochford v. Albaugh, 16 S. D. 628, 94 N. W. 701; Serles v. Series, 35 Or. 289, 57 Pac. 634: Ghamberlayne, Modern Law of Evidence, § 308; Jones on Evidence, § 174.
[3] This court has repeatedly stated that:
“In considering the verdict of a jury in any particular case, to determine whether or not it is sustained by the evidence, we are not to speculate or query how we would have viewed the evidence and testimony, or what verdict we would have rendered had we been of the jury. The real and only question to be solved and answered is, Is there any legal evidence upon which the verdict can properly be based, and the conclusions embraced in and covered by it be fairly reached? It is t'he province of the jury to weigh and pass upon the evidence; to reconcile conflicting testimony; to determine the truth or value of evidence; to ascertain and declare, from all of the evidence and testimony, the facts of the case; and from the facts, when ascertained by them, and the law as given to them by the court, to arrive at and announce their decision, which is their verdict. And we cannot determine what specific evidence they relied upon in reaching that verdict; nor how they reconciled or adjusted conflicting evidence or testimony; nor just wh'at they rejected or doubted: nor the precise weight or effee'- they gave to any particular' * * * item of [624]*624evidence or testimony. * * * This court will, as a general rule, only ask and determine, Is there any legal evidence or testimony which fairly warrants- the verdict of the jury? If there is, particularly in -a case where the evidence is conflicting, the verdict will not be disturbed.; and, if -there is not, the verdict will be set aside.” Brewing Co. v. Mielenz, 5 Dak. 136, 37 N. W. 728; Jeansoh v. Lewis, 1 S. D. 609, 48 N. W. 128; Weiss v. Evans, 13 S. D. 185, 82 N. W. 388.
By so holding have we, in effect, held that a .verdict should not be set aside except where it would have 'been- proper to have directed a verdict for the other side? If such statement is subject to- such construction, it is certainly misleading, as there is a clear distinction between the rule governing the direction of a verdict and that governing the granting of a new trial. Upon a motion to direct a verdict the question is whether there is any “evidence upon which the jury co-uld, without acting unreasonably in the eye of the law, decide in favor of * * * the party producing it” (Bartelott v. Bank, 119 Ill. 259, 9 N. E. 898; Offutt v. Exposition Co., 175 Ill. 472, 51 N. E. 651); while upon a motion to set aside a verdict the question is whether, under all the evidence, the verdict is reasonable “in the eye of the law.” The court in Railway Co. v. Lowery, supra, concludes:
“It seems to us to follow, from b-oth reason and authority, that there is a difference between the legal discretion of the court to set aside a verdict -as against the weight of evidence and that obligation which the court has to- withdraw a case from the jury, cr direct a verdict, for insufficiency of evidence. In the latter case it must be so insufficient in fact as to be insufficient in law; in the former case it is merely insufficient in fact, and -it may be either insufficient in law, or may have more weight, and not enough to justify the court, in exercising the control which the law gives it to prevent unjust verdicts, to allow a verdict to' stand.”
Wigmore gives two reasons why the same rule should not control in setting- aside verdicts as controls in directing- verdicts.’ They are:
“In the first place, because the -mass of evidence in the two-situations is very different (for after verdict the defendant’s evidence has to be considered with the rest), an-d, in the next place, [625]*625because the setting aside of a verdict leads merely to- a new trial, while the ruling of insufficiency leads usually to the direction of a verdict for the opponent.” Wigmore on Evidence, § 2494.
[4, 5] Inasmuch as the law presumes that a new trial of a cause will result in a just judgment, there is vested in the trial' courts a wide discretion to set aside verdicts and grant new Dials, which discretion will seldom he disturbed by an appellate court, even though, from a reading of the record on appeal, it appears that the jurymen fairly exercised the reasoning faculty in arriving at their verdict. Upon the consideration of a motion to set aside a verdict, it is the duty of both trial and appellate courts to consider all the material evidence, tout not to weigh conflicting evidence for the mere purpose of determining the credibility of witnesses — this being- within the sole province of the jury. But when either a trial or appellate court has considered all the evidence, and, so far as reason will permit, resolved the evidentiary facts as well as the inference to be drawn therefrom in favor of the verdict, it is bound to set aside such verdict, whenever it is clear that the jury failed to draw proper inferences from such evidentiary facts or failed to properly weigh, one against another, the inferences that it drew therefrom.
“The same duty of enforcing the rule of correct reasoning which presses upon the trial judge- in his administrative relation to the jury rests upon all reviewing or appellate tribunals in passing upon the action of trial judges -or inferior courts.” Chamber-layne Modern Eaw of Evidence,. § 312.
[6] When the record shows that the rule of reason has been disregarded by the trial court, then the granting- of a new trial is but the determination of a question of law, and is not only within the power, but is also- within the duty, of the appellate tribunal.
[7] From the evidence herein it appears that the property in question had, from, somewhere about the year 1906, been upon the farm of one Peter Ringsdorf, in Hyde county, S. D. There is no evidence to show but that it was still on such -farm when it was seized by defendant. W. Ringsdorf was in the possession of said farm for several years, but it appears that for some two years before this property was levied upon as his property he had resided at Huron, Beadle county, S. D. At the time it was levied [626]*626upon he was in another state. W. Ringsdorf testified that he •brought some of the property to this farm when he came to this state; -that he purchased some of it afterwards; that the property he brought was his father’s, Peter Ringsdorf’s; and that he bought the rest for his father and with money furnished by his father. Pie testified that his father sold this property to his (W. Ringsdorf’s) wife, and that she sold it to' plaintiff in the year 1910. It stands undisputed that, at the time W. Ringsdorf claims his father owned this property, his father gave a mortgage thereon. It also stands undisputed that, 'at the time his wife claimed to own such property, she gave a mortgage thereon. The testimony shows that this mortgage was given -to take up the first mortgage, and also' to raise money to pay the father for the property. The bill of sale given by the wife to plaintiff was received in evidence. Plaintiff swore that this property belonged to him, and that he was in possession of the Peter Ringsdorf farm, whereon this property had been situated. There was thus presented complete prima facie proof that the title of this property was in plaintiff and had never been in the judgment debtor, W. Ringsdorf. To overcome such prima facie case defendant offered the testimony of three witnesses who swore that, while W. Ringsdorf was in possession of the property, he had spoken of' it as his property, and, as to .part of it, had stated that he bought it. There does not appear to have been any situation-existing at the time either of these statements was made that would give to such remarks airy peculiar force as evidence of title in Ringsdorf. Each of these witnesses testified to not more than One or two of such statements, and it appears that such statements were made back in the years 1906 to about 1909, while the property was levied on in the summer of 1913. While it must be conceded that this testimony was, if standing alone, both sufficient in law and in fact because an inference that W. Ringsdorf •formerly owned the property might be drawn therefrom, yet the probative force of his statments — the strength of the inference to be drawn therefrom — rests entirely upon the circumstances and conditions under which he made them. Under the circumstances and conditions surrounding these statements the inference of ownership to be drawn therefrom is exceedingly weak and wholly insufficient to overcome the prima facie case established by the [627]*627■plaintiff. Common experience teaches us that such statements, casually made by one in the possession of property, have at best but little weight as proof of title in the speaker. If the inference of ownership to be drawn from such statements was strong, we would have abundant proof 'that husbands are the owners of their wives’ property; that .agents own the property of their principals; that clerks are at least partners in every mercantile business; that the section man and station agent own our lines of railway; and that the farm laborer owns the farm and everything thereon. Without a thing to show that the statements were made under circumtances and conditions that would demand of the speaker that he speak with the express purpose of claiming title to the property or of claiming that he had bought it for himself, it is clear that the jury drew from such statements inferences that reason cannot support in the light of the other evidentiary facts proven. Under all the evidence the verdict was unreasonable and shows to our satisfaction that the jury “failed to fairly exercise the reasoning faculty on the facts before them.”
The judgment and order appealed from are reversed.