Truckers Exchange Bank v. Conroy

SPECIALLY CONCURRING OPINION. If the record in this case presented merely an instance where the verdict is clearly against the overwhelming weight of the evidence, I would favor reversing the case for a new trial on that ground for the reason that I am of the opinion that Section 592 of the Code of 1930 which authorizes the circuit court to grant as many as two new trials to the same party in any cause was enacted to serve a wholesome purpose in the administration of justice, and that it often becomes the duty of the trial court to exercise the right granted by that statute rather than to grant a peremptory instruction in some instances. But in view of the fact that the plaintiff in the court below in testifying that the fixtures in question were not listed in the deed of trust at the time she signed it, also further testified positively that other collaterals were listed in the face of the deed of trust instead of on the back of the note, and which we find were not in fact listed therein, but were listed on the back of the note contrary to her view of the matter, it is manifest that she was clearly mistaken in her recollection as to what property was described in the deed of trust at the time it was executed, and that therefore the testimony is so unsatisfactory as to be wholly insufficient to support a finding that the defendants altered the deed of trust after it was signed. I must therefore concur with the conclusion stated in the majority opinion.