Epitomized Opinion

Wienetsky commenced action in the lower court to recover various sums delivered by him to the bank for the purchase of kronen to be sent by it to his wife in Austria-Hungary. The evidence differs as to why the Bank failed to remit the money. The. case has been tried to four different juries, two of which were unable to agree and one of which returned a verdict for Wienetsky, which verdict was set aside by the trial court because it was contrary to law and against the weight of the evidence. The last jury returned a verdict for Wienetsky and the Bank prosecutes error to this court. Held by Court of Appeals in affirming judgment:

1.Where a verdict is set aside, by the trial judge, by a decision which recites that one of the grounds is that the verdict was against the weight of the evidence, the Court of Appeals is without power to consider the weight of the evidence as set forth in the record. Cleveland Ry. Co. v. Trendal, 101 O. S. 316.