Holland v. Kelly

• Citation: 149 Iowa 391,128 N.W. 338
• Parties: HOLLAND v. KELLY.
• Decision Date: 21 November 1910
• Court: United States State Supreme Court of Iowa

149 Iowa 391

128 N.W. 338

HOLLAND

v.KELLY.

Supreme Court of Iowa.

Nov. 21, 1910.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Action at law to recover possession of certain certificates of deposit alleged to be a part of the estate of Michael Kelly, deceased, and to be wrongfully detained by the defendant. The plaintiff appeals from the ruling of the trial court setting aside a verdict in his favor and granting a new trial on the defendant's motion. Affirmed.Wade, Dutcher & Davis and O. A. Byington, for appellant.

Ranck & Bradley and J. J. Ney, for appellee.

PER CURIAM.

That the defendant, Catherine Kelly, has possession of certain certificates of deposit formerly owned and held by Michael Kelly in his lifetime, is conceded; but she claims to have become, and to be now, the rightful owner and holder of said instruments by virtue of a gift made to her by the said Michael before his death. This defense is denied by the plaintiff, who further alleges that at the time of the said gift Michael Kelly was of unsound mind. The cause was tried to a jury, which returned a verdict in favor of plaintiff for the possession of the papers in controversy. After the return of the verdict, defendant moved to set it aside and for a new trial. The motion contested the sufficiency of the evidence to sustain the finding of the jury, and assigned some 20 other grounds for the order requested, including numerous alleged erroneous rulings by the court, and various acts of alleged misconduct by plaintiff's counsel, as well as the alleged illness of defendant's counsel, whereby he was unable to properly conduct the defense and protect his client's interests. This motion was at first denied, but on subsequent application made at the same term for a reconsideration of the ruling it was sustained, and a new trial ordered. The plaintiff appeals.

We shall not undertake any review of the evidence, or of the several rulings and alleged errors assigned as grounds for defendant's motion for a new trial. The record presents no peculiar facts or circumstances to take the case from under the familiar rule applicable to appeals from orders for new trial after verdict. Such orders--as we have had very frequent occasion to say--will not be reversed on appeal, unless it affirmatively appears that in granting them the trial court has abused its discretion. This is especially true where the motion is sustained generally upon numerous grounds, on the merits...