Seaman v. Burnham

16 N.W. 38, 57 Wis. 568, 1883 Wisc. LEXIS 355

Opinion

Cassoday, J.

The reasons which operated upon the mind of the trial judge in setting aside the verdict and granting a new trial are not disclosed in the record. It does appear, however, that the court made the order after “ being sufficiently advised.” Counsel for .the appellant says the jury’s “.verdict was set aside on the ground (as we suppose) that the verdict was against the weight of evidence.” There is no claim that in so doing he acted upon any mistaken notion of the law applicable to any question in the case. Such being the record, the only question before us for consideration is whether there was an abuse of discretion, within the rule which has often and recently been declared by this court. The setting aside of a verdict and granting of a new trial, at the cost of the party beaten, as here, is not only within the discretion of the trial judge, but his action will not be reversed unless it clearly appears from the record that there was an abuse of such discretion. McLimans v. City of Lancaster, ante, p. 297; Jones v. C. & N. W. Railway Co., 49 Wis., 352. This rule is conceded by counsel, but a reversal is asked upon the ground that the verdict is supported by the great preponderance of the evidence. We have no desire to prejudice a retrial of the case by expressing any opinion upon that question. It is sufficient to say, under the circumstances above stated, and after a careful reading of all the testimony in the case, that we are unable to hold that there was any abuse of discretion by the trial judge within the rule above stated.

By the Oourt.— The order of the county court is affirmed.