Bank of Stratton v. Dixon

Si-eebwin, J.

*623

1

*622 This petition for a new trial was filed under subdivision 7, section 3154, Code 1873, which pro *623 vides that a new trial may be granted for “unavoidable casualty or misfortune preventing the party from prosecuting or defending.” The matter of granting a new-trial is left largely to the sound discretion of the trial court, and, unless an abuse of such discretion is shown, we will not disturb the finding. Callanan v. Bank, 84 Iowa, 8 Willett v. Millman, 61 Iowa, 123 ; Mogelberg v. Clevinger, 93 Iowa, 736 .

2 There is no question in this case as to the residence of' the defendant at the time the notice was served. In the testimony of the defendant’s wife, given in her first deposition, she says positively that she inclosed, directed, and mailed the-letter containing the notice in question. In her subsequent testimony she says she was mistaken as to having mailed it, and the testimony of a daughter was before the court that she in fact deposited the letter in the post office in Monroe. The defendant’s testimony shows, that there were two or three mails each day at Rockwell City,, and that the letter was never received by him. The testimony also shows that this letter was never returned to the defendant’s wife from the dead letter department, or from elsewhere. There is no evidence tending to show that other letters mailed by defendant’s family to him while he was in Rockwell City did not reach him, nor is there any evidence of accident to, or destruction, or miscarriage of any mail at any time passing between Monroe and Rockwell City. The distance between the two places cannot be over 125 miles,, and nothing in the record shows that any change of mail was. necessary in passing between the two points, nor is it shown-that the letter in question did not in fact reach Rockwell City. The most shown on this subject is that the defendant did not personally receive it. On the whole record before-it, the trial court found that the letter was either not mailed, to defendant, or, if it was, that it reached its destination, but-was overlooked by him. This finding of fact we do not feel. *624 .should be disturbed. It is said in Insurance Co. v. Rodecker, 47 Iowa, 162 : “In view of the almost unerring certainty in the transmission of mails in this country, which is well known to all men, we think the court below was justified in ■finding from the evidence that the envelope in question was not deposited in the postoffice in Des Moines, or, at least, that the fact was not established by the preponderance of the evidence.” The facts in the case at bar are very similar to those in the case cited, and the language there used may well be applied here.

3 It is claimed, however, that this question is foreclosed by the decision on the former appeal of this case (Bank v. Dixon, 105 Iowa, 148 ) ; but such is not the case. There the reversal was based on the failure to set up a valid defense, and the question of the sufficiency of the showing for a new trial on this question Avas not passed upon at all. True, it was said, in arriving at the question AAdiich was to determine the case, “We may, for the pres•ent purposes, admit that the facts alleged by the defendant in •excuse for his non-appearance * * * constituted an unavoidable casualty and misfortune;” but this language itself expressly shoAvs that it was not deemed necessary to pass upon that branch of the case, and that the court did not do so is as clear as could Avell be made. We are of the opinion that the judgment of the court below on this question finds such support in the evidence that Ave should not disturb it. As this will result in an affirmance, we do not deem it necessary to discuss the other questions argued. The judgment is AFFIRMED.