
    FRANK WRIGHT, Appellant, v. MAYER S. ASCHHEIM and JAMES M. MOCKS, Respondents.
    Appeal — Error not Presumed. — A.n order granting a new trial will not be reversed on appeal unless error therein be made affirmatively to appear.
    Appeal from a judgment of tbe district court of the third district, granting a new trial. The opinion states the facts.
    
      Ifessrs. Woods & Hoffman and Mr. Arthur Brown, for the appellant.
    
      Messrs. Bennett, Harlmess & Kirkpatrick, for the respondents.
   Powers, J.:

The plaintiff having recovered a verdict in the court below, the defendant moved for a new trial upon two grounds: (1) Insufficiency of the evidence to justify the verdict of the jury, and that the verdict and decision is against law; (2) errors in law occurring at the trial, and excepted to by the defendant. A new trial was granted, and from that order the plaintiff appeals.

It is not seriously contended in this court that the court below erred in its rulings upon the trial, or in its charge to the jury. We think that the case was very fairly tried, and the questions of fact were submitted to the jury with the defendants’ rights well guarded. We think the court laid down the law correctly, and we see nothing to criticise in that regard. The case having been fairly submitted to the jury for its consideration, it is our duty to hesitate before we hold the verdict to be contrary to the evidence, even if we have the power so to do. We have given the testimony, as presented by the statement, a careful review, and we are not satisfied that error has been committed. It is our duty, in suoli a case, to bo governed largely by the decisions of the trial judge, who heard the testimony, and who had an opportunity to observe the witnesses while testifying. That being so, we will not disturb the order of the court below awarding a new trial. In other words, the burden being upon the party appealing to convince us that error has been committed, and the court not being- so satisfied as the case stands on the present record, [the order] is affirmed, with costs.

Zane, C. J., and Boreman, J., concurred.  