268 N.W. 700 | S.D. | 1936
Certain attachment proceedings were instituted by the defendant Disbrow Co. against the now plaintiff Shann. Levy was made on certain lumber in the Shann Dumber Yard. Later, a motion was made to dissolve the attachment and set aside a portion of the levy. A portion of the property was released by the court's order, and returned to Shann. The remainder was held by the sheriff under the attachment, to await the outcome of the original suit.
This action was brought by the plaintiff, as an action on the attachment bond, for loss suffered by the attachment, and, further, on the theory of malicious prosecution. The case was tried, and at the close of plaintiff's case the defendants separately moved for *529 directed verdicts, and said motions were denied. Thereafter a verdict was tendered by the jury in favor of the plaintiff, against the surety company and Disbrow Co., on the bond, in the amount of $750, and against Disbrow Co. in the amount of $9,000. The plaintiff, after the verdict had been rendered, voluntarily reduced the recovery against the surety company to $300.
After the trial, a motion for a new trial was made by the defendants, which was based upon some sixty-eight separate assignments of error. The two principal grounds that we are concerned with are the insufficiency of the evidence to justify the verdict and that the verdict was against the evidence, and excessive damages appearing to have been given by the jury under the influence of passion and prejudice. The court, upon due consideration of the motion for new trial, entered its order granting such motion for new trial, from which order the plaintiff has appealed.
Among the grounds contained in the order granting the new trial, we will consider grounds 4, 5, and 6, which are as follows:
"4. Insufficiency of evidence to justify or support the verdicts rendered in that there was no sufficient evidence to justify or support the verdicts as to the damages suffered by the plaintiff.
"5. Insufficiency of the evidence to justify or support the verdicts rendered in that it is impossible under the evidence for the jury to determine what damage was caused by the rightful attachment and what damage by the excess attachment.
"6. Excessive damages rendered by the jury indicating prejudice and passion, in that assuming all of plaintiff's evidence to be true and the plaintiff to have suffered the utmost damage testified to, yet the evidence falls far short of showing that plaintiff suffered the amount of damage contained in the verdicts."
It would appear from an examination of the record that the court was fully justified in granting the order upon the foregoing grounds.
[1] This court held in Hackett v. Straw et al, 33. S.D. 17, 144 N.W. 655, that, where a motion for new trial was made and granted upon the insufficiency of the evidence among other grounds, the ruling of the trial court would not be disturbed excepting upon manifest abuse of the discretion vested in the trial court. We feel that we are bound to follow that ruling. In that case we said: *530 "The testimony relative to the extent of the services rendered by appellant is very conflicting, and one of the grounds upon which the motion for a new trial was based is the insufficiency of the evidence. If the motion was granted on this ground, or this among other grounds, the ruling of the trial court will not be disturbed, except upon manifest abuse of the discretion vested in the trial court."
This court, in an early decision, in Hodges v. Bierlein,
We have consistently followed that rule in the following decisions: Alt v. Chicago N.W. Ry. Co.,
In security State Bank of Beresford v. Bank of Centerville, supra, this court commented upon the rule of giving the trial judge latitude and upholding his discretion on account of his immediate connection in observing the witnesses, their demeanor on the witness stand, and his peculiar position to correctly weigh their evidence, and his view in the interests of justice to grant a new trial when the interests of justice would be subserved thereby, and we held that his decision should not be lightly overturned by this court.
Our attention has been called to the rule laid down in the recent decision in Zastrow v. Knight,
[2] We believe the court exercised its judicial discretion in the granting of a new trial, and that no abuse of such discretion appears.
The order appealed from is affirmed.
ROBERTS and RUDOLPH, JJ., concur.
CAMPBELL, J., concurs in affirmance.
POLLEY, P.J., dissents.