The opinion of the court was delivered by
This appeal is from an order setting aside the verdict of a jury and granting a new trial. In Bender, respondent, v. Biiiker, defendant, and Voss, appellant, just decided, ante, p. 633, we were called upon to determine the right of plaintiff to an attachment in this action. The'motion for a new trial in the present case was made by the defendant Voss, and based upon all of the statutory grounds, including insufficiency of the evidence and excessive recovery. The order is general in its terms, and does not specify any particular ground upon which the new trial was awarded. üSTor do counsel agree as to the ground upon which the lower court predicated the conclusion. Under the circumstances, we are unable to determine upon which ground of the motion the new trial was granted. If it was because of the alleged insufficiency of the evidence to justify the verdict, that was a matter within the discretion of the lower court, who heard and saw the witnesses; and the conclusion reached thereon would not be disturbed by this court, excepting for an abuse of discretion, and where, as here, the evidence at the trial is conflicting this court will not disturb the conclusion of the trial court upon such a motion. On the other hand, if it was for alleged errors of law occurring at the trial, and it could be ascertained from the record that such were the reasons for awarding the new trial, an appeal from such an order would present a clear-cut legal question, and a ruling of the lower court in such a case would not involve the exercise of any discretion, and th;is court would unhesitatingly review it. The difficulty with the present case is that it is impossible to determine whether the new trial’ was awarded upon a ground concerning which the
So ordered.
Dunbab, Pullebton and Peavis, JJ., concur.