Practice C.P. — New trials — Discretion of court — Abuse of discretion.
An order granting a new trial will be affirmed where the judge who presided at the trial stated in his opinion that notwithstanding the fact that two successive juries had rendered verdicts for the plaintiff, he was convinced that the weight of the evidence established that the note upon which the suit was brought was not the instrument of the defendant, and that, therefore, he could not conscientiously permit the verdict to stand.
Under such circumstances the single question before the appellate court was whether or not the order amounted to an abuse of discretion. In this case there was no abuse of discretion.
Argued October 16, 1928.
PER CURIAM, December 13, 1928:
This is an appeal by the plaintiff from an order granting a new trial after a second jury had rendered a verdict against the defendant. The sole question of fact at each trial was whether a certain judgment note was signed by defendant or by someone for him, or whether the name of the defendant was a forgery.
The judge who presided at the second trial states in his opinion that even in view of the fact that two successive juries have rendered verdicts for the plaintiff, he is still convinced that the weight of the evidence establishes that the note is not the instrument of the defendant, and that therefore he could not conscientiously permit the verdict to stand.
The single question before us is whether under all the circumstances the order amounted to an abuse of judicial discretion. After reading the record we are not convinced that it did. While it has been held that a court will not order a new trial against two concurring verdicts upon a question of fact except in an extraordinary case (Clemson v. Davidson, 5 Binney 392), we are of the opinion that there are features in the evidence of this case which render it somewhat exceptional in character.
Therefore the order is affirmed.