Root v. Bingham

• Court: South Dakota Supreme Court
• Writing for the Court: HANEY, J
• Citation: Root v. Bingham, 26 S.D. 118, 128 N.W. 132 (S.D. 1910)
• Decision Date: 04 October 1910
• Parties: CURRIE ROOT et al., Plaintiffs and respondents, v. GEORGE BINGHAM, Defendant and appellant.

26 S.D. 118, 128 N.W. 132 (1910)

CURRIE ROOT et al., Plaintiffs and respondents v GEORGE BINGHAM,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Marshall County, SD

Hon. J. H. McCoy, Judge

Affirmed

Otto L. Kaas, Taubman, Williamson & Herreid

Attorneys for appellants.

Byron Abbott

Attorney for respondent.

Opinion filed October 4, 1910

HANEY, J.

This is an appeal by the plaintiffs from an order granting a new trial. Among the statutory grounds designated in the notice of intention was insufficiency of the evidence to justify the verdict. The order does not specify the grounds upon which it was based. It is well settled in this jurisdiction that an application for a new trial on the ground of insufficiency of the evidence is addressed to the sound discretion of the trial court, that the ruling thereon will not be reversed in absence of manifest abuse of discretion, and that a stronger showing will be required when the order grants than when it refuses a new trial. Hodges v. Bierlein, 4 S.D. 258, 56 N.W. 811; Alt. v. Chicago & N.W. Ry. Co., 5 S.D. 20, 57 N.W. 1126; Grant v. Grant, 6 S.D. 147, 60 N.W. 743; Thomas v. Fullerton, 13 S.D. 199, 83 N.W. 45; Rochford v. Albaugh, 16 S.D. 628, 94 N.W. 701; Jones v. Jones, 17 S.D. 256, 96 N.W. 88; Clifford v. Latham, 19 S.D. 376, 103 N.W. 642.

Conceding the rule to be substantially as stated, appellants contend the record in this case discloses manifest abuse of discretion. An accurate exhaustive definition of the phrase "abuse of discretion" would be difficult, if not impossible. Each case must be determined with reference to its own peculiar facts. There are different kinds of discretion that may be exercised by the trial court. There is the discretion in the sense of the exclusive right to decide as that court pleases, which will not be reviewed by the appellate tribunal. There is a discretion in the decision of what is just and proper under the circumstances. The latter kind, the kind of discretion involved in the case at bar, will not be revised unless there is an abuse of it; that is, unless it appears that it was exercised on grounds or for reasons, clearly untenable, or to an extent clearly unreasonable. That would be its abuse. Murray v. Buell, 74 Wis. 14, 41 N.W. 1010, Abuse of discretion in granting a new trial does not necessarily imply intentional wrong. In such a case discretion is abused whenever in its exercise a court exceeds the bounds of reason; all circumstances before it being considered. As said by the Supreme Court of Wisconsin in Murray v. Buell, supra:

"The term 'abuse of discretion' exercised in any case by the trial court, as used in the decisions of courts and in the books, implying in common parlance a bad motive or wrong purpose, is not the most appropriate. It is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence."

The difference between an order granting and an order refusing a new trial is obvious. One leaves the litigation undetermined. The other concludes it. Hence the rule requiring a stronger showing to secure a reversal of the former. Indeed, the...