Wilson v. City of Eau Claire

61 N.W. 290, 89 Wis. 47, 1894 Wisc. LEXIS 247

• Court: Wisconsin Supreme Court
• Decided: December 11, 1894
• Status: Published

Opinion

NewMAN, J.

In Schillinger v. Verona, 85 Wis. 589, 595, it is said: “ The rule is firmly settled by repeated decisions that the granting of a new trial is very much in the discretion of the trial court, and that its- order granting the same will not be reversed unless there clearly appears to have been an abuse of such discretion;” and that “the only exception to this rule is where it affirmatively appears upon the record that such order was based upon a misapprehension of the law.” The rule is restated, in the same words, in J. & H. Clasgens Co. v. Silber, 87 Wis. 357. The instant case is not within the exception. It clearly does not appear affirmatively upon the record that the order was based upon any misapprehension of the law relating to the subject of the action. On the contrary, it does appear affirmatively that the order was based upon the insufficiency of the evidence to support the verdict. The trial, court was dissatisfied with the verdict. The order cannot be reversed on that ground.

But undoubtedly the new trial should have been granted only upon the terms that the plaintiff pay the costs of the former trial. The case is within the general rule. The mew trial was granted on the ground that the verdict was not supported by the evidence. This is the same as saying that it is against the weight of evidence. It ig an error for which the order must be reversed. Schraer v. Stefan, 80 Wis. 653; Garny v. Katz, 86 Wis. 321; Cameron v. Mount, 86 Wis. 477.

By the Court.— Tbe order of tbe circuit courtis reversed, and tbe cause remanded with direction to grant a new trial on tbe terms that tbe plaintiff pay tbe costs of tbe former trial.