Easterling v. Power

BURNETT, J. — This cause was tried before the district court, by consent of parties, without a jury. The finding and judgment of the court were for the plaintiffs, and the defendants moved for a new trial upon the ground that the finding was contrary to the evidence. The court overruled the motion for a new trial and the defendants appealed.

It is always with great reluctance that this court will reverse the decision of the court below refusing a new trial upon the ground that the finding of the judge or the verdict of the jury is contrary to the evidence. But in a clear case it is our duty to do so.

In this case we can see no testimony to support th'e finding. The testimony, when carefully compared, does not materially conflict, and the weight of it is clearly with the defendants.

Judgment reversed, cause remanded, and a new trial ordered.

I concur: Murray, C. J.