Dulaney v. Rankin

Citations

• 47 Miss. 391

Syllabus

<p>1. New trials — history of. — Originally, in England new trials were not allowed except for nlatters appearing of record. The first innovation upon this practice was in Slade’s case, Style, 138, in which the judge certified that the verdict was against his opinion. Erom this time the courts relaxed the ancient rule; the remedy by attaint of the jury fell into disuse; the courts exercised a discretion in setting aside verdicts whenever in their opinion against justice and conscience; and finally that which was at first a discretion, became, in the course of experience, capable of being classified into well-defined rules.</p> <p>2. New trial — discretion.—There are, however,some cases in which the granting or refusal of a new trial still rests largely in discretion, and more especially in the discretion of the judge before whom the jury trial was had; such as where there is excessive or diminished damages, and in cases of perjury, and the moans of exposure not readily at hand, etc.</p> <p>3. New trial and second verdict — presumption—practice.—Upon exception to an order granting a new trial, and when the second verdict is adverse to the plaintiff in error, and no motion made to set it aside, and no bill of exceptions embodying the evidence and history of the new trial, the appellate court will presume in favor of the correctness of the last verdict; because the circuit judge may have cured, on the second trial, the supposed errors of the first.</p>