92 Wash. 357 | Wash. | 1916
In June, 1914, appellant Elliott instituted an action against the Havers Motor Car Company and caused a writ of attachment to be issued, by virtue of which a certain automobile, described as a Havers Six, No. 683, was attached. Shortly afterwards, under authority of Rem. & Bal. Code, § 573 et seq., the respondent Commercial Bank of Port Huron, hereinafter called the bank, filed an affidavit claiming it was the owner of the automobile. The bank then filed a bond with the American Surety Company as surety, and the car was released from the attachment and delivered to a representative of the bank. Appellant filed an answer denying ownership of the automobile by the bank, and a trial
Whatever may be the legal effect of these affidavits filed subsequent to the trial of the cause, we think the court was fully justified in granting a new trial on the ground that the evidence was insufficient to support the verdict, as the only evidence that car No. 683 was not one of the cars cov
“Q. Now, was the car attached by Mr. Elliott one of the cars that were shipped out in that way without your ordering it? A. It was one of the car loads. I think I had two car loads of that model. They sent two car loads of that model out.”
This evidence of nonownership of the bank was so meager that the trial court, as shown by his remark above quoted, was inclined to give the bank a directed verdict. This court has uniformly held that it is in the discretion of the trial court to grant or refuse a motion for a new trial upon the question of the insufficiency of the evidence to support the verdict, and that this court will only interfere with the discretion of the lower court when there has been a clear abuse of such discretion. In such case the court weighs the evidence and grants or refuses a new trial in his discretion. If he exercises sound discretion, we do not disturb it, and the presumption is in favor of his exercise of sound discretion. Brown v. Walla Walla, 76 Wash. 670, 136 Pac. 1166, and cases there cited.
In Koenig v. Whatcom Falls Mill Co., 67 Wash. 632, 122 Pac. 16, we said:
“Under the law as established in this state, it sometimes becomes the duty of the court to grant a new trial because of the insufficiency of the evidence to sustain the verdict, even though there is some slight evidence, which, standing alone, might sustain the verdict.”
Applying this rule to the evidence in this case, which consisted of ample testimony of the ownership of the car by the bank and the meager, indefinite testimony of Gray, as hereinbefore quoted, of nonownership by the bank, it seems evident that there was no such clear abuse of discretion by the trial court in granting this motion for a new trial as would