74 Wis. 171 | Wis. | 1889
The setting aside of a verdict and the granting of a new trial is very much in the discretion of the trial court. This being so, the action of such court in such matters will not generally be disturbed unless it appears affirmatively that there has been an abuse of such discretion. This is so whether such action is based upon newly discovered evidence, misdirection to the jury, misconduct of the jury, or any supposed injustice. Smith v. Champagne, 72 Wis. 480, and cases there cited. The only exception to this rule is when it affirmatively appears upon the record that such' action of the court is based upon a misapprehension of the law. When that so appears, then the error becomes one of law, thus obviating the necessity of determining whether there has been any such abuse of discretion. Mullen v. Meinig, 68 Wis. 410, and cases there cited.
Here the trial court set aside the verdict and granted a new trial on the grounds of misdirection to the jury and newly discovered evidence. The misdirection referred to seems to have consisted in charging the jury, in one part of the charge, in effect, that if the plaintiff, under certain circumstances stated, “ looked to Mr. Lewis for payment of his services, or to see that he was paid therefor,” then he could not recover, whereas the instruction, it is claimed, should have been,' in effect, that if the plaintiff, under the circumstances stated, “ agreed that he "would look to Mr. Lewis for payment for his services,” then he could not recover. The difference consisted in exonerating the defendant in the one case from liability merely because the plaintiff “looked to Lewis” for his pay, and in the other because he “ agreed ” so to look. We are not prepared to say that the jury were not thereby misled, as presumed by the trial court.
Nor are we prepared to hold that the newly discovered
We have no doubt of the power of the court in its discretion, upon a proper showing made, to extend the time for the payment of the costs mentioned in the order of July 5, 1888. The statute expressly gives such power, even “ after the time limited by or in pursuance of the statute, or by any order of court, has expired.” Sec. 2831, R. S. This court has frequently sanctioned its exercise. Whereatt v. Ellis, 68 Wis. 72, 70 Wis. 207; Sutton v. Wegner, 72 Wis.
By the Court.— The respective orders of the superior court of Milwaukee county are affirmed.