Keith v. Cottam

FOLLFY, J.

Vendiict and judgment for plaintiff were vacated by the trial court, and a new trial granted. From the 'order granting a new trial, plaintiff appeals.

[1] It is first contended by appellant that the order appealed from should be reversed because of irregularities in the proceedings had to procure the order granting a new trial. It appears from the record that the trial court granted defendant a short-extension of time in which to prepare and serve the transcript, specifications of error, etc., on counsel for appellant. Counsel for appellant claims that the transcript of the evidence was delivered to respondent on the 2d day of June, 1916, and that the order extending time was not made until the 17th day of that month, more than 10 days after the delivery of the transcript, and that therefore the court was without authority to make such order. This is a matter that should have been submitted to the trial court at or before the hearing of the motion for a new trial. Not having been called to th.e attention of that court at the proper time, it will be deemed to have been waived by respondent, and will not be reviewed by this court.

[2] In Western Surety Co. v. Boettcher, 165 N. W. 381 , in reviewing- an order granting a new trial, this court said:

“It is a well-established' rule in this state that the order of a trial court granting a new trial will not be reversed, unless it clearly appears that the trial court abused its judicial discretion in granting such motion.” ' ■

In this case there was a sharp conflict in the evidence on the material issue involvel on the trial. Under these circumstances, and under the rule above stated, the trial court did *98 not abuse its discretion in granting the new trial. Drew v. Lawrence, 37 S. D. 620, 159 N. W. 274

The order appealed from is affirmed.