Burke v. Flannery

• Decision Date: 24 October 1922
• Docket Number: No. 34705.,34705.
• Citation: 190 N.W. 139
• Parties: BURKE v. FLANNERY.
• Court: Iowa Supreme Court

190 N.W. 139

BURKE

v.FLANNERY.

No. 34705.

Supreme Court of Iowa.

Oct. 24, 1922.

Appeal from District Court, Woodbury County; Miles W. Newby, Judge.

“Not to be officially reported.”

Plaintiff brings this action against the defendant for damages for her seduction. There was a trial to a jury resulting in a verdict for plaintiff, which, upon motion of the defendant for a new trial, was set aside. Plaintiff appeals. Affirmed.H. A. Evans and Ward R. Evans, both of Sioux City, for appellant.

Jepson, Struble & Anderson, of Sioux City, and Thos. McInerny, of Elk Point, S. D., for appellee.

STEVENS, C. J.

This is an appeal from an order of the court below granting the defendant a new trial. The motion set forth 14 grounds, which included the usual statutory grounds of a motion for new trial, together with alleged errors in several paragraphs of the court's charge to the jury. The record shows that the motion was sustained generally. Some months after notice of appeal had been served and filed, counsel for plaintiff filed his affidavit in the office of the clerk of the district court reciting that, immediately after the court's ruling on the motion for a new trial, the presiding judge informed him that the motion was sustained solely and alone upon the ground that he believed error had been committed in one of the instructions, designating it. No motion was made by appellee to strike the affidavit, nor does it appear to have ever been brought to the attention of the court.

It is now argued by counsel for appellant that the paragraph of the instruction referred to correctly stated the law, and that the court abused its discretion in sustaining the motion for a new trial on account thereof. The affidavit cannot be considered. The record of the court's ruling cannot be thus impeached. None of the grounds of the motion were overruled, and the court is unable to determine whether the motion was sustained upon one or all of the grounds recited therein. The rule that an order granting a new trial will not be reversed in the absence of a showing in the record of the abuse of the court's discretion is too well established and been too long followed by this court to justify any departure therefrom at this time. Thomas v. Illinois Central R. R. Co., 169 Iowa, 337, 151 N. W. 387;Hunt v. Des Moines City Ry. Co., 188 Iowa, 1068, 177 N. W. 48;Whalen v. Brodkey, 189 Iowa, 1255, 179 N. W. 513;Vestal v. Thistle Coal Co., 191 Iowa, 1112, 183 N. W. 443.

The...