26 S.D. 118 | S.D. | 1910
This is an appeal by the plaintiffs from an order granting a new trial. Among the statutory grounds designated in the notice of intention was insufficiency of the evidence to justify the verdict. The order does not specify the grounds upon which it was based. It is well settled in this jurisdiction that an application for a new trial on the ground of insufficiency of the evidence is addressed to the sound discretion of the trial court, that the ruling thereon will not be reversed in absence of manifest abuse of discretion, and that a stronger showing will be required when the order grants than when it refuses a new trial. Hodges v. Bierlein, 4 S. D. 258, 56 N. W. 811; Alt. v. Railway Co., 5 S. D. 20, 57 N. W. 1126; Grant v. Grant, 6 S. D. 147, 60 N. W. 743; Thomas v. Fullerton, 13 S. D. 199, 83 N. W. 45; Rochford v. Albaugh, 16 S. D., 628, 94 N. W. 701; Jones v. Jones, 17 S. D. 256, 96 N. W. 88; Clifford v. Latham, 19 S. D. 376, 103 N. W. 642.
Conceding the rule to be substantially as stated, appellants contend the record in this case discloses manifest abuse of discretion. An accurate exhaustive definition of the phrase “abuse of discretion” would be difficult, if not impossible. Each case must be determined with reference to its own peculiar facts. There are different kinds of discretion that may be exercised by the trial court. There is the discretion in the sense of the exclusive right to decide as that court pleases, which will not be reviewed by the appellate tribunal. There is a discretion in the decision of what is just and proper under the circumstances. The latter kind, the kind of discretion involved in the case at bar, will not be revised unless there is an abuse of it; that is, unless it appears that it was exercised on grounds or for reasons, clearly untenable, or to an extent clearly unreasonable. That would be its abuse. Murray v. Buell, 74 Wis. 14, 41 N. W. 1010. Abuse of discretion In granting a new trial does not necessarily imply intentional wrong. In such a case discretion is abused whenever in its exercise a court exceeds the bounds of reason; all circumstances before it being considered. As said by the Supreme Court of Wisconsin in Murray v. Buell, supra: “The term 'abuse of discretion’ exercised in any case by the trial court, as used in the decisions of courts
The defenses were (i) an executed oral modification of the original contract with performance as modified; and (2) a -complete accounting and settlement. In support of the -second defense, if not of the first, defendant introduced abundant evidence. Though contradicted, it was of a substantial and satisfactory character. The cause had been only once tried. The evidence, to say the lea-st, was conflicting, if it did not strongly preponderate in favor of the defendant. The learned trial judge was in position to observe the demeanor of -the witnesses and numerous incidents of the trial impossible of reproduction in a printed -record. He must be presumed to have acted with deliberate and enlightened judgment. There is nothing in the record which would justify this court in concluding that his discretion was exercised to an end or purpose not justified by sound reason- and the evidence. It does not manifestly -appear that his action was -either arbitrary, or ex
Therefore his decision should stand and the order appealed from be affirmed.