Cox v. Tucker, 97 So. 721

Cox v. Tucker

97 So. 721 | Miss. | 1923

Anderson, J.,

delivered the opinion of the court.

*385This was an issue derisarit vel non tried by a jury in the chancery court of Lowndes county. Appellees were the contestants of the alleged will of Mrs. Ostrander, deceased, Avhile appellants were the proponents of said will and contestees. The issues were whether the alleged will was a forgery, and, if not, whether the maker was capable mentally of making the will. There Avas a verdict in favor of appellees, and a judgment accordingly setting aside said alleged will,'from which judgment appellants prosecute this appeal.

Clearly this was not a case for a peremptory instruction for appellants, because there was evidence for as well as against the validity of the will.

The only question presented is whether or not the verdict of the jury was against the overwhelming weight of the evidence. If it was, appellants should be "granted a new trial. In a case where the evidence is conflicting and the verdict depends upon the weight to be given the testimony of the Avitnesses, and upon inferences to be drawn from facts proven and the conduct of the parties in interest, a new trial will not be granted except for clear and manifest error in the rulings of the court, or where the verdict is against the overwhelming weight of the evidence. Wood v. Gibbs, 35 Miss. 559; Garland v. Stewart, 31 Miss. 314; M. & O. R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113. No ruling of the court in the trial of this ease is assigned as error or argued by appellants except the overruling of their motion for a neAV trial based on ‘the insufficiency of the evidence to sustain the verdict.

The evidence in favor of the alleged will is very strong, while the eAddence against its validity has many elements of weakness. But the latter cannot be said to be unbelievable. This court under the law has no authority to set its judgment up against that of the jury except for the purpose of determining whether there was sufficient evidence to support the verdict. It is the duty of this court where the verdict of the jury is against the overwhelming *386weight of the evidence to grant a new trial. However, we cannot say with perfect confidence that this is that kind of a case. We are therefore constrained to permit the verdict of the jury to stand.

Affirmed.