Burlington Gas Light Co. v. Geeen, Thomas & Co. , 21 Iowa 335 ( 1866 )

Wright, J.

i pkaooi-cexJpé tlons' We do not feel justified in disturbing the order granting a new trial. In the first place, within the rule stated in The State of Iowa v. Lyon (10 Iowa, 340), there is nothing to show that we have before us all the testimony adduced on the trial below. A statement that the bill of exceptions contains the substance of it, is not sufficient. And see State of Iowa v. Hockenberry and Brandt, 11 Iowa, 269.

_ajs crepancies. In the next place, the testimony is not in the body of the bill of exceptions, and there are discrepancies in the paging, or references made. Such being the case, we eaimot do otherwise than reject or disregard it. Bell v. Rowland, 9 Iowa, 282; Lynes v. Thompson, 16 Id., 62; Van Orman v. Spofford et al., Id., 186, and cases there cited.

3. new verdict . deuce. But finally, one ground of the motion for a new trial was that the verdict was against the evidence. This motion was sustained generally, and while from the testimony we might have found as the jury did, there is no such conclusive preponderance in favor of the verdict as to justify our interference with the order granting a new trial. This is a ease (involving no inconsiderable amount) where the new trial was granted, and a stronger case should be made to authorize a reversal than if it had been refused. See the following cases: Whitney v. Blunt, 15 Iowa, 283; McNair v. McComber, Id., 368; Shepherd v. Brenton, Id., 84; McKay v. Thorington, Id., 25; Alger v. Merrick, 16 Id., 121; Newell v. Sanford, 10 Id., 396; Ruble v. McDonald, 7 Id., 90; Braddy v. Dumery, 11 Id. 29.

The testimony we need not refer to, either in detail or generally. It is suificient to say that it was not without conflict, upon the issue made by the answer of the appellees, that the time of payment was extended to the principals in the note, for a valuable consideration, without the consent of the sureties. Its weight may be conceded to be in favor of plaintiff, but it is the constant practice to refuse to interfere when the new trial is granted, and when we should have done the same thing if it had been refused. Phelps v. Hart, 15 Iowa, 596. And see Brockmar v. Berryhill, 16 Id., 183.

This is not a case where the court below misapplied a legal proposition. True, the record seems to indicate that the ruling was based somewhat upon the ground that there was error in giving certain instructions. But it by no means appears that it was based entirely upon this ground. And while these instructions do not strike us as objectionable, we need not discuss them, as upon the new trial the questions made may not arise.

Affirmed.