refused: McKay v. Thorington, 1525, 28; Bergert v. Davenport City R. Co., 34-471. A strong preponderance of evidence against the verdict and a conviction that a different result would more nearly accord with justice, are not sufficient to justify the supreme court in ordering a new trial, where they are not satisfied from the absence of evidence to support a verdict that it was not the result of a free, honest, unbiased and intelligent exercise of judgment and conscience on the part of the jury, and that justice will fail if the verdict is not set aside: Garret y v. Brazell, 34-100; Parker v. D. S. W. R. Co., 34-399. set aside by the court below as not supported by the evidence and a new trial granted, it will require a stronger showing to justify the interposition of the supreme court than when a new trial, asked on similar grounds, has been refused: Jenkins v. C. & N. W. R. Co., 32-97; also where several trials have resulted in the same verdict and the trial court has refused to set the last one aside as against the evidence, it would require a very strong case to justify an interference by the appellate court: Burlington G. L. Co. v. Greene, 28-289. It is with reluctance and caution that an appellate court interferes with the verdicts of juries. Where there is reasonable doubt, or a conflict of evidence, the verdiet will be upheld; but if there is no such doubt or conflict, the duty to set aside the verdict is plain; and in the case under consideration the verdict was set aside: McAunich v. M. & M. R. Co.. 2 -338; and to the same point: Martin v. Orndorff, 20-217; Lester v. Sallack, Where it clearly appears that the verdict is in conflict with the evidence, the supreme court will, on appeal, reverse the decision of the trial court in overruling a motion for a new trial based on that ground: Lester r. Sallack, 31-477; but such decision will not be disturbed unless so barren of support as to warrant the finding that it was the result of pas-31-477. sion or prejudice: Schermer v. Gendt, 52-742. The rule of the supreme court, that it will not interfere with the decision To authorize the reversal of the de- of the court below in refusing a new cision of the court below setting aside trial on account of the insufliciency a verdict on account of insufficiency of of evidence where there is a conflict, evidence, there should appear such has no application whatever to nisi conclusive preponderance of evidence | prius courts. They should independin its support as would show that in-ently exercise the power to grant justice would be done: Worthington new trials, whenever their superior v. Olden, 31-419. and more comprehensive judgment To justify the granting of a new teaches them that the verdict of the trial on the ground that the verdict jury fails to administer substantial is against the weight of evidence, the justice to the parties, using caution, want of evidence must relate to a ma- however, in the exercise of the power, terial issue legitimately made by the so as not to invade the legitimate pleadings: Parker v. Hendrie, 3-province of the jury: Dewey v. C. 263. & N. W. R. Co., 31-373. A verdict will not be disturbed in the supreme court unless clearly against the weight of evidence: Booth v. Small, 25–177. The discretion of the trial court in overruling a motion for a new trial on the ground that the verdict is contrary to the evidence, will not be reversed where there is a conflict in the testimony: Russ v. Steamboat War Engle,14-363; Brockman v. Berryhill, 16-183; Burlington, G. L. Co. v. Green, 22-508; Ackley v. Berkey, 22226; Pierce v. Walker, 23-424; McCabe v. Knapp. 23-308; Callanan v. Shaw, 24-441, Schrimper v. Heilman, 24505; Hull v. Alexander, 26–569; Shermnv. West Stage Co., 24-515, 554; Garland v. Wholeham, 26-185; Todd v. Bronner, 30-439; Snyder v. Nelson, 31-235: Snyder v. Eldridge: 31129. And where the verdict has been Whenever a verdict is clearly, not doubtfully, against the manifest justice of the case, it is the duty of the trial judge unhesitatingly to set it aside; but where there is a conflict of evidence, and the jury being clearly charged as to the law, have found a verdict which the trial court has refused to set aside, the supreme court will not interfere: Smith r. Williams, 23–28. The decision of the court below overruling a motion for a new trial, on the ground that the verdict is contrary to the evidence, will not be reviewed, unIss the bill of exceptions embodies the whole of the evidence: The State v. Lyon, 10-340; The State v. Hockenberry, 11-269: Parsons v. Chap man, 11-294; McCool v. G. & C. v. R. Co., 17-461. A certificate that the bill of exceptions contains subst ntially all of the evidence, will not be sufficient: Lea v. Roads, 22-408; | until after the trial, held, that the Burling on G. L. Co. v. Green, 21-335; showing of diligence was sufficient: Daris v. Card, 33–592; McKenzie v. Eckel v. Walker, 48-225. Kitler, 21-254; Jemmison v. Gray, 29-537. Before the enactment of the provisions contained in $3169, held, that a judgment would not be reversed, on the ground that the verdict was contrary to the evidence, when a motion for a new trial upon that ground had not been made in the court below: Brayton v. Boone, 19-506. A general allegation of the exercise of reasonable diligence will not be sufficient: Carson v. Cross, 14-463. An application for new trial on this ground should be denied when it is apparent that the ground relied on is technical, and that the rights of the parties have been once fairly adjudicated and settled: McLain v. Lawson, 25-277. ly lead to a different result; Millard v. Singer, 2 Gr., 144 : The State v. Bowman, 45-418; Cornish v. C. B. & Q. R. Co, 49-378; Carpenter v. Brown, 50-451. If a party is surprised on the trial by evidence which he is not prepared to meet, he should ask a continuance, and if he does not do so, the discovery of evidence to meet it afterwards, will not entitle him to a new trial. Dinigenc to procure the evidence in time for trial must be shown: Dunlavey v. Watson, 38–398. That a verdict is against the in- A new trial in such cases should structions given the jury by the court, not be granted, unless the court should is sufficient ground for setting it think that upon a new trial such newaside: Farley v. Budd, 14-289. Inly discovered evidence might probasuch cases the decision of the court below in granting a new trial on that ground, will not be disturbed on appeal, nor the instructions given be reviewed. It is the duty of the jury to regard the instructions as the law. and find a verdict accordingly, whether they be right or wrong: Savery v. Busick, 11-487; Jewett v. Smart, 11-505; Taylor v. Cook, 14501; nor will such decision be reviewed when the instructions are not before the appellate court: Caffrey v. Groome, 10-548; Briggs v. Hartman, 10-63; Porter v. Thomson, 22-391. PAR. 7: The application for a new trial on the ground of newly discovered evidence, should be accompanied by the affidavit of the newly discovered witness, where it can be procured, stating the facts to be established by his testimony: Warren r. The State, 1 Gr. 106: Mays v. Deaver, 1216; Manix v. Malony, 7-81; Sulley v. Kuehl, 30-275. A new trial will not be granted for newly discovered evidence which is merely cumulative: Reeres v. Royal, 2 Gr., 451; Ruble v. McDonald, 7–30; Sturgeon v. Ferron, 14-160; Wilhelmi v. Thorington, 14-537; Keys r. Francis, 28-321; Cohol v. Allen, 37 449; Bingham v. Foster, 57-339; German v. Maquoketa Savings Bank, 38-365; First National Bank of Iowa City v. Charter Oak Ins. Co.. 40-572; but to be cumulative the evidence must not only be to the same point, but of the same kind as that produced on the trial. Evidence of an admission of plaintiff of a fact, held, not to It must appear that reasonable dil-be cumulative with other evidence of igence was exercised to discover such such fact; Wayt v. B. C. R. & M. evidence: Bingham v. Foster, 37- R. Co., 45-217. That new evidence 339, 341; Mather v. Butler Co., 33- tends to establish the same ultimate 250; Lay v Wissman, 36-305; Kil-fact, if it is not of the same kind and burn v. Mullen, 22-498; Reeves v. Royal, 2 Gr., 451. The party should give the court the best proof possible as to the newly discovered evidence, where it is, and that it can be produced on the trial: Reeves v. Royal, 2 Gr., 451. A party must show what he did toward discovering the evidence, that the court may judge whether it constituted due diligence: Sulley v. Kuehl, 3-275. In a particular case, held, that sufficient diligence had not been 'used: Bailey'v. Landingh m, 52-415. Only reasonable diligence is required to be shown: Stineman v. Beath, 73; and where the new evidence consisted of proof of admissions which the witness did not speak of to any one to the same point, will not render it cumulative; Eckel v. Walk r. 48225; Able v. Frazier, 43-175; Alger v. Merritt, 16-121. Though the evidence be in some respects cumulative, still, if in any degree it has an independent and destinct bearing upon the issue, it will be sufficient: Stineman v. Beuth, 3673; Hambel r. Williams, 37-224. Where a judge. in overruling a 36-motion for a new trial, certifies that the evidence was cumulative, such statement will be regarded, on on appeal, as true, when the evidence itself is not before the court: Seymour v. Hoyt, |dence before final decree is rendered: 23-19. Adams Co. v. B. & M. R. R. Co., As to what evidence may be consid-44-335. ered cumulative, see German v. Maquoketa Savings Bank, 28–363. A new trial will not be granted on account of newly discovered evidence which would go in mitigation of damages: Ruble v. McDonald, 7-90; nor when such evidence merely impeaches an opposing witness: Wise r. Bosley, 32-34; Dunlavey v. Watson, 38-398. Where, after the remanding of an equity cause, tried de noco in the supreme court, and before final decree in the lower court, a party makes such showing of newly discovered evidence as to entitle him to a new trial, he may file amended pleadings, if necessary, and introduce such evi PAR. 8: An error of the court in granting or refusing a new trial on a legal proposition, is reviewable on appeal with no more presumption in its favor than a ruling made in any other stage of the case: Byington v. Woodward, 9–360. Error of law is not ground for new trial unless duly excepted to: Darrance v. Preston, 18-396. As to whether it was necessary to urge errors at law in a motion for new trial before the supreme court would review them on appeal, see note to $ 3168; but a motion for a new trial is no longer necessary: $3169. made. C. '51,1808, 810. SEC. 2838. The application must be made at the term and When to be within three days after the verdict, report, or decision is rendered, R. 23114, 3115. except for the cause of newly discovered evidence; must be by motion upon written grounds, and if for the causes enumerated in sub-divisions two, three, and seven of the preceding section, may be sustained and controverted by affidavits. TIME OF APPLICATION: Except Affidavits of jurors may be received when based upon the ground of newly for the purpose of avoiding a verdict discovered evidence, the application by showing any matter occurring must be made within three days: during the trial or in the jury room, Boardman v. Beckwith, 18-292 If which does not essentially inhere in made on that ground after the expi- the verdict itself. But such affidavits ration of the three days, it should be cannot he received as to any matter by petition, but within one year after essentially inhering in the verdict the discovery of such evidence, as pro- itself, as that a juror did not assent to vided in § 3155: First Nat'l Bank of it, that he misunderstood the instrucTama City v. Murdough, 40–26. tions, that he was unduly influenced or mistaken, etc., etc.: Wright v. Ill. & Miss. Tel. Co., 20-195; Cowles v. C., R. I. & P. R. Co., 32-515; Garrtty v. Brazell, 34-100; Shepherd v. Brenton, 15-84, and cases cited. If the motion be made in proper time, an amendment thereto, germain to the object and purposes of the original motion, may be made after the time specified: Sowden v. Craig, 20 477. Where the record shows that the motion was not made in time, the decision of the trial court in overruling it will not be reviewed. If the record is wrong in this respect, it should be corrected in the court below: Stiles v. Botkin, 30-60. Affidavits of jurors are receivable to show misconduct of the jury, as taking with them and considering a deposition not introduced in evidence: Stewart v. B. & M. R. R. Co., 11-62; or to show the statement, by a juror to his fellows, of a fact outside the case made in court: Hall e. Robison, 2591; or to show that the verdict was a quotient verdict: Schanlen v. Porter, 7-482; Manix r. Maloney, 7-81; Hendrickson v. Kingsbury, 21-379; Darland v. Wade, 48-547; also to show The affidavits of jurors here con- that the verdict was arrived at by lot: templated are voluntary. The court Ruble r. McDona d, 7-90; Wright v. cannot, by rule upon the jury, com- Ill. & Miss. Tel. Co., 20-195. (As to pel them to answer under oath as to quotient verdicts or verdicts by lot, the manner of making up their ver-see, generally, notes to preceding secct: Forshee v. Abrams, 2-571; tion, 2.) AFFIDAVITS: The ground relied on must be set out in the motion, otherwise affidavits in support thereof cannot be received: Beal v. Stone, 22-447. Grady r. The State, 4-461; Crumley Affidavits of jurors are not receiva- were influenced by a part of the answer in the case which had been stricken out by demurrer: Cowles v. C. R. I. & P. R. Co., 32-515; noz that they were unduly influenced by fellow jurors in the determination of the verdict: Bingham v. Foster, 37 ing what items of account were al- Affidavits of jurors are not receiva- misapprehension of the law: Ward v. Thompson, 48-588; nor that they erroneously rejected evidence before them: The State v. McConkey, 494.9. SEC. 2839. A new trial shall not be granted on account of the Not granted on smallness of damages in an action for an injury to the person or reputation, where the damages equal the actual pecuniary injury sustained. account of smallness of damages. R. 23113 Costs of. Court may If for omitted alone may be Same. K. 3120. SEC. 2840. The costs of all new trials shall either abide the event of the suit or be paid by the party to whom such new trial is granted, according to the order of the court to be made at the time of granting such new trial. SEC. 2841. The court may determine not to grant a new trial, unless certain terms or conditions named by the court shall be agreed to by the opposite party; in the event of his agreement to which, the terms or conditions named shall be entered on the record, and no new trial shall be granted if the party refuse to agree to the terms or conditions upon which a new trial shall be awarded. The court may make the filing of a bond for the payment of judgment and costs the condition upon which a new trial will be granted: Loring v. Holt, 39-574. It may also give the successful party the alternative of submitting to cert in terms or to a new trial: Brockman v. Berryhill, 16–183. SEC. 2812. Upon any motion for a new trial in arrest of judg. ment, or for judgment, notwithstanding the verdict, by reason of the non-averment of some material fact, the party whose pleading is thus alleged defective may, if the court deem it necessary, file a statement of the omitted fact, which, if true, would remedy the alleged defects, and such statements shall be filed before the hearing of the motion and shall suspend the same. If the facts thus stated would not, if proved, defeat the object of the motion, it shall be granted. If such new averments would, if proved, defeat the object of the motion and be not admitted, they must be denied, or confessed and avoided by the opposite party within such time as the court shall direct unless the same are denied by legal operation, and in such case the law of pleading and of procedure applicable to actions and pleadings of that kind shall obtain, except that the party stating the new fact shall be held the plaintiff therein, and the statement and response shall not need to be verified. SEC. 2843. If the facts thus stated be admitted or found to be true, the party stating the same shall be entitled to such judgment as he would have been entitled to if such facts had been stated in the original pleading and admitted as proved on the tr.al, together with the costs of and occasioned by the new pleading and the proceedings therein; but if the fact be found untrue, the opposite party shall be entitled to his costs of and occasioned by the new pleading and the proceedings therein, in addition to any other costs to which he may be entitled. DISMISSAL OF ACTION. SEC. 2844. An action may be dismissed, and such dismissal shall When done be without prejudice to a future action: 1. By the plaintiff, before the final submission of the case to the jury, or to the court when the trial is by the court; 2. By the court, when the plaintiff fails to appear when the case is called for trial; 3. By the court, for want of necessary parties, when not made according to the requirement of the court; 4. By the court, on the application of some of the defendants when there are others whom the plaintiff fails to prosecute with diligence; 5. By the court, for disobedience by the party of an order concerning the pleadings or any proceeding in the action. the affidavit provided for in § 2699, The provision that plaintiff may dismiss before final submission, is equivalent to a denial of the right to dismiss after such submission: Belzor v. Logan, 32-322; and after submission it is too late to take a non-suit: Hays v. Turner, 23-214; Mansfield v. Wilker-ton, son, 26-482. But a submission to a referee not being mentioned, a party may dismiss at any time before the filing of the referee's report, notwithstanding the referee, by $$ 2819 and 2820 stands in the place of the court: Belzor v. Logan, 32–322. The direction of the court to the jury, after the giving of the instructions, to enter upon the consideration of the cause, is the final submission to the jury under this section: Harris v. Beam, 46-118. Where, by the ruling of the court, in an action tried before it, all of plaintiff's evidence was excluded, and he was left without testimony, held that he should be allowed to dismiss, although the court was ready to give i's decision: Partridge v. Wilsey, 8-459. Plaintiff may dismiss after filing of Where a cause is being tried on appeal from a justice's court, the right to dismiss is the same as in an action originally brought in the higher court; certainly so, in an action which might originally have been prosecuted in such court: Harris v. Laird, 25-143. A party may dismiss as to one or more of several causes of action and prosecute as to others: Ballinger v. Davis, 29–512. A plaintiff who voluntarily dismisses his action cannot complain, on appeal, of any action of the court previous to such dismissal: Marsh v. Graham, 6-76. Under our statute, there is no such thing as an involuntary non-suit upon the evidence: Way v. Ill. Cent. R. Co., 35-585. without preju- SEC. 2845. In all other cases upon the trial of the action the on the merits. decision must be upon the merits. Where there is no evidence tending | any degree to establish the cause of to establish plaintiff's case, or to estab-action, the facts should be leit to the lish any one of two or more essential, jury, even though the court should ultimate facts necessary to be shown to entitle him to recover, it is the duty and within the province of the court to directly instruct the jury how to find. But if the evidence tends in feel in duty bound to set aside a ver- R. 3128. |