Mullen v. Haberkorn

• Decision Date: 22 March 1887
• Citation: 32 N.W. 293,68 Wis. 408
• Parties: MULLEN AND OTHERS v. HABERKORN, DEFENDANT, AND ANOTHER, GARNISHEE.
• Court: Wisconsin Supreme Court

68 Wis. 408

32 N.W. 293

MULLEN AND OTHERS

v.HABERKORN, DEFENDANT, AND ANOTHER, GARNISHEE.

Supreme Court of Wisconsin.

March 22, 1887.

Appeal from circuit court, Fond du Lac county.

It appears from the record that, December 24, 1884, the defendant, Haberkorn, made a general assignment for the benefit of his creditors to the garnishee, Reinig; that December 26, 1884, the plaintiffs commenced an action against Haberkorn, and at the same time served garnishee summons and affidavit therein upon him and the garnishee, Reinig; that January 8, 1885, the garnishee appeared in the action by the service of notice of retainer by his attorneys therein; that on the same day the assignee by affidavit denied any indebtedness or liability to the defendant, or having in his possession any of his property, credits, or effects; that January 10, 1885, the plaintiffs gave notice of their election to take issue on the answer of the garnishee; that Haberkorn put in no appearance, and made no contest; that January 16, 1885, the plaintiffs recovered judgment in the principal action against Haberkorn for $558.23 damages and costs, and docketed the same; that, on the trial of the garnishee issues thus formed, the jury, under the charge of the court, found for the plaintiffs, and assessed their damages at $558.23, with interest at the rate of 7 per cent. per annum from January 16, 1885; that thereupon, and at the same term of the court at which said trial was had and said verdict was rendered, and on motion of the attorneys for the garnishee therefor, made November 10, 1885, and after the hearing of counsel for the respective parties thereon, “and the court being fully advised,” it was ordered by the court, in effect, January 4, 1886, that the motion for a new trial be, and the same was thereby, “granted, on the payment of ten dollars attorney's fees, clerk's fees of the term, of plaintiff's costs, and disbursements of the term, by the garnishee.” From that order the plaintiffs bring this appeal.C. K. Pier, for appellants.

E. S. Bragg, for respondent.

CASSODAY, J.

The evidence taken upon the trial of the issues of garnishment, and preserved in the bill of exceptions and printed case, is quite voluminous. An elaborate argument was made upon the merits at the bar, and a like argument is presented in the printed brief of the learned counsel for the plaintiffs, to the effect that the verdict was fully justified by the evidence, and hence was improperly set aside. In relation to that it is enough to say that the evidence in favor of the plaintiffs is not so conclusive of fraud as to justify this court in holding that the order setting it aside and granting a new trial was an abuse of discretion. Besides, some error may have intervened, or some other satisfactory reason, not apparent to us from the record, may have induced the making of the order. The recital in the order, of “the court being fully advised” when it made the same, precludes the assumption of its being made without good reason, merely because none is apparent to us from the record. It is to be remembered that the setting aside of a verdict, and granting of a new trial, at the term of its rendition, and at the cost of the party beaten, as here, is not only within the discretion of the trial judge, but, as a general rule, his action will not be reversed unless it clearly appears from the record that there has been an abuse of such discretion. Evans v. Rugee, 63 Wis. 31, 23 N. W. Rep. 24;McLimans v. Lancaster, 57 Wis. 297, 15 N. W. Rep. 194;Seaman v. Burnham, 57 Wis. 568, 16 N. W. Rep. 38, and cases there cited. The only exception to this rule is where it affirmatively appears...