14 Wis. 687 | Wis. | 1861
y the Gourt,
Appeal from an order granting a new trial on the ground of surprise. Notwithstanding the observations of the court in Chamberlain vs. Railroad Co., 7 Wis., 429, upon the provision of the Code giving an appeal from an order granting or refusing a new trial, all the subsequent cases have proceeded according to the former practice, and no such order has been reversed except upon the ground that there was manifest abuse of discretion, or that some settled principle of law had been violated. 7 Wis., 475; id., 498; 10 Wis., 440; id., 505. Upon mature deliberation, we have concluded that the practice indicated by the latter cases is correct, and that it was not the intention of the legislature to invest this court with the discretionary powers exercised by judges at nisi prius. A practice which has so long obtained, and the operation of which has been found so salutary and useful in the administration of justice, ought not to be abolished, except by words showing clearly and manifestly that such was the intention of the legislature. The exercise of a sound discretion in such matters often depends upon a variety of facts and circumstances which cannot be described on paper and brought before the appellate trx-
Governed by this rule, although we are not, upon the facts before us, fully satisfied that a new trial should have been granted, yet we cannot say that there was an abuse of discretion. The affidavit of the defendant shows an apparently good defense to the action, and the case discloses no such gross or inexcusable negligence on his part, as to entirely disentitle his application to consideration at the hands of the court The circuit judge could best determine whether, under all the circumstances, there was probable ground for believing that he was taken by surprise. The order was made on the most favorable terms possible to the plaintiff, and must be affirmed.
Order affirmed.