
    FRANK C. AVERY v. WILLIAM HOLLISTON.
    
    May 8, 1908.
    Nos. 15,560—(71).
    Review of Order Granting New Trial.
    Wlien the court, in setting aside a verdict and granting a new trial, states in the order that he does so because (1) the evidence does not justify the verdict, and (2) that he erroneously instructed the jury on a question of law, the order will not be reversed, unless the evidence was manifestly and palpably in favor of the verdict, although this court is of the opinion that the instruction as given was correct.
    Action of replevin in the municipal court of the city of Hutchinson to recover possession of a horse claimed to have been purchased by oral contract. In that court there was a verdict in favor of plaintiff. From the judgment entered pursuant to the verdict, defendant appealed to the district court for McLeod county where the first trial resulted in a disagreement of the jury. A second trial was had before Morrison, J., and á jury which rendered a verdict that plaintiff was the owner of the property described in the complaint. From an order setting aside 'the verdict and granting defendant’s motion for a new trial, plaintiff appealed.
    Affirmed.
    
      Sam G. Anderson, Jr., for appellant.
    
      W. C. Odell, for respondent.
    
      
       Reported in 116 N. W. 354.
    
   ELLIOTT, J.

In an action of replevin to secure possession of a horse, the jury returned a verdict for the plaintiff, and thereafter the court set aside the verdict and granted a new trial. The question at issue was whether there had been a sale of the horse to the plaintiff, and in the order setting aside the verdict the trial court stated that in his opinion the evidence did not justify the verdict, and also that he had erroneously instructed the jury as to what was necessary to show a sale of the horse. We think the instruction as given was correct, and therefore the court would not have been justified in granting a new trial on the ground stated as an error of law. But, regardless of this erroneous reason thus given, the order must be sustained, in view of the fact that m the opinion of the court the evidence did not justify the verdict. An examination of the record fails to show that the evidence was manifestly and palpably in favor of the verdict, and therefore, under the well-known rule, the discretion of the trial court must be approved.

Order affirmed.  