120 Ark. 99 | Ark. | 1915
(after stating the facts). Appellant contends that the ruling of the court in granting the appellee a new trial was erroneous because there was some substantial evidence tending to show that appellee rented the land to the appellant for the year 1912 through her husband and agent, Thornton Mantooth.
'Conceding, without deciding, that there was testimony from which the jury might have found that appellee rented the land to appellant for the year 1912 through her husband, Thornton Mantooth, acting as her agent, and that there was substantial evidence to sustain such verdict, still it does not follow that the court erred in granting the motion for a new trial. 'Counsel for appellant frankly say that “it may be admitted that the evidence of the authority of Thornton Mantooth to act as the agent of his wdfe is not strongly proven by direct testimony.” Certainly it can not be said that there was no conflict in the testimony on this point. On the contrary, if there was any competent testimony to show that Thornton Man-tooth was the agent of his wife to rent the land in contro-, versy for the year 1912, and that as such agent he did rent the land to appellant for the year 1912, there was certainly direct and decided testimony conflicting with this and to the effect that he was not her agent, and did not rent her lands to appellant for the year 1912.
In Blackwood v. Eads, 98 Ark. 304, we quoted the following from the 'Supreme Court of Missouri: “The Supreme Court will not, where there is substantial conflict in the evidence, review the action of the trial court in granting a new trial because the verdict is against the weight of the evidence.” iSee cases there cited.
In McDonnell v. St. Louis, S. W. Ry. Co., 98 Ark. 334, page 336, we said: “It is not invading the province of the jury for the trial judge, to set aside its verdict where there is a conflict in the evidence. On the contrary, it is the duty of the trial court to set aside a verdict that it believes to be against the clear preponderance of the evidence. But it should not, and the presumption is that it will not, set aside a verdict unless it is against the preponderance of evidence. This court ■will not reverse the ruling of the lower court in' setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance.”
And 'in McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596-599, after referring.to the above cases, the court said: ‘£ There was a decided conflict in the testimony, and we can not say that the trial court erred in its conclusion that the verdict was against the preponderance of the evidence or abused its discretion in setting it aside. * * * It is difficult to determine where the preponderance of the testimony lies, and we certainly are unable to say that the conclusion of the trial judge is against the preponderance.” See, also, Taylor v. Grant Lumber Co., 94 Ark. 566.
Under the testimony in this record, there was no abuse of discretion on the part of the trial judge in setting aside the verdict and granting a new trial, and in accordance with the stipulation on the part of appellant, and in pursuance of the statute (Kirby’s Digest, section 1188, subdivision 2, and section 1238), final judgment will he rendered here in favor of the appellee.
