Elswick v. Newsom's Administrator , 39 Ky. 260 ( 1840 )

The Chief Justice

delivered the Opinion of the Court,

As there was no motion for a new trial, by the plaintiff, after the jury on the last trial found a verdict against him, we must presume, in the absence of any bill of exceptions, that the evidence sustained the last verdict, and that, therefore, justice has been done by the judgment on that finding.

In such a state of case, the alleged error in setting aside a verdict for the plaintiff on a former trial, should be manifest and unquestionable. It is not so in this case. The weight of probability was against the first verdict; and we cannot say that, in allowing the defendants an, other trial, the Circuit Judge did the plaintiff any injustice, or transcended the limits of a sound judicial discretion; for there was strong reason for apprehending that the first verdict was unjust; and this deduction is fortified by the last verdict, unquestioned as it is, on the facts upon which it was rendered, or on the ground of a full and fair trial of all the facts.

Wherefore, the final judgment, now sought to be reversed, is affirmed.