Kinna v. Horn

1 Mont. 597 | Mont. | 1872

Knowles, J.

This cause presents but two points. There was a full traverse of the complaint of plaintiffs by the answer' of the defendant Horn. Upon the material issues in the case there was a conflict of testimony. This court has repeatedly held, in accordance with the well-established precedents of other courts, that where there is a conflict in the testimony upon the material points in issue in the cause, it cannot disturb the verdict of a jury. That it cannot invade the province of the court below and of the jury, and determine the credit to be given the witnesses, and as to whether injustice was done.

The other point is the irregularities occurring during the trial complained of in the affidavits filed by the appellants. There was no exception duly authenticated taken as to any action of the court below, or the jury. The conduct complained of is that of the defendant Horn and one of his attorneys. It does not appear in any manner that these irregularities affected the conduct of the jury, and this court cannot presume that they did. The granting of a motion for a new trial rests in the sound legal discretion of the court that tried the cause. The judge of that court was acquainted with the facts of the case and was better able to determine the effect of the irregularities specified in the affidavits of appellants than this court. And in the overruling of the motion for a new trial we can see no abuse of discretion. We find no other points presented in the case that demands our consideration.

Judgment of the court below affirmed.

Judgment affirmed.