Van Wagenen v. Parsons

Granger, J.

*265

1

*264 We should not lose sight of the fact that this appeal is from an order in effect granting a new trial. *265 The court did, in terms, set aside the report of the referee, and grant a new trial. The law authorizes a new trial after a report of a referee. Code 1873, section 2837. This is a law action, to be considered here on assignments of error. The only question for us to consider is, did the court err in making the order for a new trial ? No judgment has been entered, and the order but subjects the issues to a re-examination. Section 2837, supra. The action of the district court in granting or refusing a new trial is largely one of discretion. Donahue v. Lannan, 70 Iowa, 73 ; Pianoforte Co. v. Mueller, 38 Iowa, 552 ; Kern v. May, 92 Iowa, 674 . The holdings to the same effect are many. In the absence'of an abuse of discretion, we do not interfere.

The motion upon which the ruling was made presents several grounds, and it does not appear on what one or more the ruling was based. For us to interfere, it must appear that there was an unjust exercise of discretion as to all of them, for, if any one comes within the court’s .discretion, we are concluded from interfering. The assignments of error are directed to the different grounds of the motion, and to the exceptions, but the arguments are not so directed, but are general, dealing with the merits of the ease before the referee and the court. Our position may be clearer by stating some of the concluding language of appellant’s argument: “The honorable judge who set aside the report of the referee was in a position analogous to that of an appellate court. He did not have the evidence. He did not have the witnesses before him. The referee sat as a judge. He heard the evidence. He observed the witnesses, and found the facts with defendant; and there is no reason why the report should be set aside, for it is amply supported by the evidence.” Omitting the final statement, which is a mere conclusion, and conceding the other statements to be true, there is no abuse of discretion shown in awarding another hearing. Even our concurrence in the conclusion of appellant that the finding of the referee is supported by the evidence would not show an abuse of discre^ tion, for the trial court might have thought differently with *266 the condition of the record such that differences of opinion might exist. The arguments leave out of consideration this discretionary authority of the court in awarding new trials, which, in our judgment, controls the case on appeal; and we do not, nor should we, consider questions going to the merits of the case, if a new trial is to follow. The order is affirmed.