Worthing v. Cutts, 8 Nev. 118

Worthing v. Cutts

8 Nev. 118 | Nev. | 1872

By the Court,

Lewis C. J.:

Action by Worthing to recover the sum of nine hundred and forty-three dollars alleged to be due upon the settlement of a partnership account. Verdict and judgment for the plaintiff for fifty dollars. Motion was made by the plaintiff for new trial, which was granted, and the defendant appeals.

The first point made in this court is that the statement on motion for a new trial should have been disregarded by the court below and as a consequence that it should have denied the motion because the statement did not designate the general grounds of error relied on. But the Practice Act does not require such designation, but only that the statement shall specify the particulars wherein the error lies. The notice of motion is required to state generally the grounds of error, and then it is provided by section 197 that “when the notice designates as the ground upon which the motion will be made, the insufficiency of the evidence to justify the verdict, or other decision, the statement shall specify the particulars in which the evidence is alleged to be insufficient. When the notice designates as the ground of the motion error in law occurring at the trial and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. If no such specifications be made, the statement shall be disregarded. ” Thus it will be -seen the notice of motion for new trial shall designate the general grounds of the motion ; and the statement shall contain the specifications. The statement in this case contains the required specifications, but does not contain the general grounds of the motion, nor under the Practice Act was it necessary. The objection to the statement therefore seems unfounded, and it was properly considered by the court below.

*121When a new trial is granted by the judge at nisi prius upon the ground that the verdict is not warranted or sustained by the evidence, and an appeal is taken from such order, the rule invariably governing the appellate tribunal is not to disturb the action of the judge below if there is a material conflict in the evidence. It .is said by the supreme court of California in Oullahan v. Starbuck, 21 Cal. 413, “It is not enough, however, to authorize any interference with the action of the court below either in granting or refusing a new trial for alleged insufficiency of the evidence, that an appellate court, judging from the evidence as it is reduced to writing, would have come to a different conclusion. The court before which the witnesses are examined is generally better qualified to determine the propriety of granting or refusing a new trial on this ground than any appellate court; and its action in this respect will not be disturbed except for the most cogent reasons.”

In the case at bar, it cannot be denied that the evidence was conflicting and that the positive testimony of the plaintiff sustained his claim; hence under the rule above stated we cannot disturb the action of the judge below.

The order granting a new trial must be affirmed.

Garber, J., did not participate in the foregoing decision.