Hill v. Sheibley

This case was before this court in 57 Ga., 232, when a new trial was awarded by this'eourt. On a review of the last trial, now before ns again for review, the judge granted the motion to set aside the verdict and award a new trial himself, and-the plaintiff excepted thereto.

1. From the evidence disclosed by this record we cannot *532say that the judge abused his discretion in having the whole case tried again. Its general countenance, to use Judge Bleckley’s simile, did not please him, and he granted the new trial generally, putting the grant of it on no special ground.

Passing by the question of law made as to the nature of this debt, whether fiduciary or not in the sense of that word as used in the bankrupt act, under the construction recently placed upon the word by the supreme court of the United States in 5 Otto, 704-708, we hardly think that the title to this receipt in the plaintiff in error through the alleged gift by her husband to her father, is sufficiently established by proof according to. the requisitions of the law. Code, §§2657-2663 ; 1 Ga., 601; 3 Ga., 520; 31 Ga., 71-108; Code, §2776; 41 Md., 466; 57 Mo., 427.

, 2. However this may be, it is manifest that in this case . there,is no abuse of discretion in granting a now trial and !, again .investigating the questions made in the light of such .... additional-testimony as may be adduced. The discretion is in the superior court, lodged there by the law, and it cannot, be taken from that court by this court according to . law, unless that legal discretion be abused so as to become illegal in its abuse... This court sits only to review errors of law; and it is only when the grant of, or-refusal to grant, a new trial becomes an error of law that this court can legally correct the-error. -, ¡

Judgment affirmed.