Thomas v. Fullerton

Haney, J.

This is an action to recover $1,600, as damages for the taking of a frame building and certain personal propei’ty owned by the plaintiff, without his consent. Concerning the value of the property, and whether or not it was taken with plaintiff’s consent, the evidence was conflicting. A verdict was rendered in favor of plaintiff for $50. He moved for a new trial on the grounds, among others, of newly-discovered evidence, and insufficiency of the evidence to justify the verdict. Upon the hearing of such motion the following order was made, from which defendants appealed: “The motion for new trial on behalf of the plaintiff in the above-entitled cause coming on for trial, and the court having heard counsel for plaintiff and defendants on said motion, and having duly considered the same, it is ordered that said motion be, and the same is hereby, granted.” It will be observed that the order does not state upon what ground the application for a new trial was granted. An order granting a new trial on the ground of insufficiency of the evidence will be reversed only where there has been manifest abuse off discretion. Morrow v. Letcher, 10 S. D. 33, 71 N. W. 139 ; Hodges v. Biertein, 4 S. D. 258, 56 N. W. 811 ; Alt v. Railway Co., 5 S. D. 20, 57 N. W. 1126 ; Grant v. Grant, 6 S. D. 147, 60 N. W. 743 . The record before us does not purport to contain all the evidence, nor does it show what issues were submitted to the jury. There is nothing in appellants’ abstract to overcome the presumption that the trial court was *201 justified in granting a new trial on the ground that the evidence was insufficient to sustain the verdict — certainly nothing upon which to predicate an abuse of discretion. The order appealed from is affirmed.