McWhorter v. McMurrain

By the Court

Penning J.

delivering the opinion.

A j udgment granting a new trial, is not final. When, therefore, the Court in which a verdict is rendered is dissatisfied with the verdict, and grants a new trial, the grant will not be disturbed by a reviewing Court, except in an extreme case.

Audit must be admitted, that the present case comes vory near to an extreme case. Indeed, as the case stands, ii comes quite to it. As the case stands, there is no affidavit of the truth of the plea; none of an expectation of ability to prove the plea on a new trial.

Therefore, we can only conditionally, affirm the judgment granting the new trial; namely on condition, that an affidavit of these two things be filed in the Court below by McMurrain within a reasonable time, to be judged of by that Court.

Judgment affirmed conditionally.'