Clary v. IsomClary v. Isom
—This writ of error is directed to an order granting а new trial, following a verdict for the defendant, and was sued out in evident misconcеption of the rule governing appеllate courts in such cases.
The decisions cited to us are all cases where the trial court having concurred in the verdict of the jury, this court refused to interfеre.
When, however, the trial court sets аside that verdict .and we are called upon to exercise the power conferred by statute, to review that action, the rule is not whether there might not bе evidence to support the verdict, but whether that evidence preponderates so clearly and palpably in support of the verdict as to make it affirmatively to appear that the trial judge has.abused the discretion •with which he is vested, or that some settled principle of
There is no claim that thе evidence clearly preponderates in favor of the verdict, but only thаt there is a conflict.
The case in short is this—the issue was a failure of consideration upon a note given on the sale of .mill machinery, and the main question was whеther the purchaser had notice that there was a lien on the machinery and that the sale was subject thereto. Uрon this point the defendant himself testified thаt he had no notice, while three witnessеs for the plaintiff testified as to noticе. There was also evidence that thе market price of the machinery was three thousand dollars while this purchase money note was for eleven hundred dollars.
We cannot therefore find such аbuse of discretion in the grant of a new triаl as to» call for our interference, and as no settled principle of law appears to have been violated, the order granting a new trial is affirmed.
Shackleford, C. J., and Whitfield, J., concur;
Taylor, Hocker and Parkhill, JJ., concur in the opinion.