Hamilton v. Nelson

• Decision Date: 15 May 1899
• Citation: 57 P. 146,22 Mont. 539
• Parties: HAMILTON v. NELSON.
• Court: Montana Supreme Court

57 P. 146

22 Mont. 539

HAMILTON v. NELSON.

Supreme Court of Montana

May 15, 1899

Appeal from district court, Deer Lodge county; Theo. Brantly, Judge.

Action by James L. Hamilton, executor of the estate of Michael Sullivan, deceased, against Sarah A. Nelson, administratrix of the estate of John W. Nelson, deceased. From an order granting a new trial on a verdict for defendant, defendant appeals. Modified.

O. B O'Bannon and W. B. Rodgers, for appellant.

G. B Winston and W. H. Trippett, for respondent.

PIGOTT J.

Two causes of action, separately stated and numbered as is required by the last paragraph of section 672 of the Code of Civil Procedure, are united in the complaint. The subject of the first cause is a promissory note for $960, alleged to have been executed by defendant's intestate to plaintiff's testator; the second cause of action is based upon a judgment for $299, alleged to have been rendered against the intestate and in favor of the testator. The issues raised by the answer were submitted to a jury, who rendered a general verdict for defendant. Plaintiff moved for a new trial of the whole case upon the sole ground that the evidence was insufficient to justify a verdict for defendant on the first cause of action. The court granted the motion as made, thereby vacating the verdict, and ordering a new trial of both causes. Defendant appeals.

1. The defendant assigns as error the action of the court in granting a new trial of the first cause of action stated in the complaint. His counsel assert that the defense interposed was proved by a clear preponderance of the evidence. After a careful examination of the record we are of the opinion that the court below did not abuse its discretion in granting a new trial of the first cause, for the weight of the evidence is not manifestly with the defendant. Whether or not a new trial should be granted for the reason that the verdict is against the weight of the evidence, is a question peculiarly within the sound legal discretion of the trial judge, who has the advantage of seeing the witnesses, of hearing their testimony orally delivered, and of observing their demeanor and conduct upon the stand; hence the exercise of such discretion will not be disturbed by this court.

2. The court, erred, however, in granting a new trial generally. The only attack made upon the verdict was that the evidence was insufficient to sustain it as to the first cause...