Clary v. Isom
| Decision Date | 03 March 1908 |
| Citation | 55 Fla. 384,45 So. 994 |
| Parties | CLARY v. ISOM. |
| Court | Florida Supreme Court |
Error to Circuit Court, Walton County; J. Emmet Wolfe, Judge.
Action by Davis Clary against J. M. Isom. Verdict for defendant. From an order granting a new trial, defendant brings error. Affirmed.
Syllabus by the Court
A mere conflict in the evidence does not compel a reversal of an order granting a new trial upon the first verdict.
The rule laid down in Farrell v. Solary, 43 Fla. 124, 31 So. 283, to govern this court in its decision upon error to orders granting new trials, reaffirmed and applied.
Evidence examined, and found sufficient to authorize the trial court to grant a new trial.
COUNSEL S. K. Gillis and Daniel Compbell & Son, for plaintiff in error.
Avery & Avery, for defendant in error.
This writ of error is directed to an order granting a new trial following a verdict for the defendant, and was sued out in evident misconception of the rule governing appellate courts in such cases.
The decisions cited to us are all cases where, the trial court having concurred in the verdict of the jury, this court refused to interfere.
When however, the trial court sets aside that verdict, and we are called upon to exercise the power conferred by statute to review that action, the rule is, not whether there might not be evidence to support the verdict, but whether that evidence preponderates so clearly and palpably in support of the verdict as to make it affirmatively to appear that the trial judge has abused the discretion with which he is vested, or that some settled principle of law has been violated. It is not enough that we, had we acted in the first instance, might have reached a different conclusion. Farrell v. Solary, 43 Fla. 124, 31 So. 283; Allen v. Lewis, 43 Fla. 301, 31 So. 286. As in the cases cited, there has been but one verdict in this case.
There is no claim that the evidence clearly preponderates in favor of the verdict, but only that there is a conflict.
The case, in short, is ths: The issue was a failure of consideration upon a note given on the sale of mill machinery, and the main question was whether the purchaser had notice that there was a lien on the machinery and that the sale was subject thereto. Upon this point the defendant himself testified that he had no notice, while three witnesses for the plaintiff testified as to notice. There...
To continue reading
Request your trial
-
Ruff v. Georgia, S. & F. Ry. Co.
... ... not be disturbed. Dominquez v. Citizens' Bank & Trust ... Co., 62 Fla. 148, 56 So. 682; [67 Fla. 237] Clary b ... Isom, 55 Fla. 384, 45 So. 994; Orchard v. C. H. & N. R ... Co., 63 So. 717. Also see Reddick v. Joseph, 35 ... Fla. 65, 15 So. 781; ... ...
-
Dunnellon Phosphate Co. v. Crystal River Lumber Co.
... ... govern us in its exercise;' and in support thereof we ... cited the following authorities: Farrell v. Solary, ... 43 Fla. 124, 31 So. 283; Clary v. Isom, 55 Fla. 384, ... 45 So. 994; Jones v. Jacksonville Electric Co., 56 ... Fla. 452, 47 So. 1. We would also refer to the discussion in ... ...
-
Suttles v. Burbridge
... ... is hereby affirmed. The decision is controlled by Owens ... v. Wilson, 50 So. 674, 58 Fla. 335, 138 Am. St. Rep ... 117, 19 Ann. Cas. 267; Clary v. Isom, 45 So. 994, 55 ... Fla. 384; McLendon v. Lurton-Hardaker Co., 91 So ... 113, 83 Fla. 263; Ruff v. Georgia, S. & F. R. Co., ... 64 So ... ...
-
Myers v. Atlantic Coast Line R. Co.
...Power & Light Co., Fla., 65 So.2d 2; Schneider v. Cohan, Fla., 59 So.2d 644; Farrell v. Solary, 43 Fla. 124, 31 So. 283; Clary v. Isom, 55 Fla. 384, 45 So. 994, and many These and many other cases commit this court to the doctrine that where the trial court grants a new trial on the ground ......