O'Brien v. Brady

delivered the opinion of the Court—Norton, J. concurring.

This is an appeal from an order granting a new trial. The grounds of the motion for a new trial were, newly-discovered evidence, insufficiency of the evidence to justify the verdict, and that the verdict is contrary to law and the instructions of the Court. *244The appellant contends that the affidavits of newly-discovered evidence do not make out such a case as entitles the defendant to a new trial. Where the motion is founded upon newly-discovered evidence, or that the verdict is against the evidence, an enlarged discretion is vested in the Court below in the granting of new trials; and this Court will rarely interfere with them action in granting the motion on such grounds. This case comes within this rule, and we do not find any abuse of this discretion to justify a reversal of the order. Where the motion for a new trial is founded entirely upon alleged errors of law, in the proceedings of the Court below, and the order for a new trial is granted solely upon that ground, this Court will review such action of the Court, as in other cases, where questions of law and not matters of mere discretion are involved. This case, however, does not come within this exception to the general rule.

The order is affirmed.