Lord

This is an action by the husband for a divorce. The ground relied on is extreme cruelty. The court, upon the testimony reported by the referee, found the facts for the plaintiff, and rendered a judgment accordingly. After a review of the evidence on a motion for new trial, based mainly on the ground that the evidence was insufficient to establish the charge of extreme cruelty, the court below granted a new trial. Plaintiff appeals from the order.

Appellate courts will only set aside an order granting a new trial, when it is very clearly erroneous. We cannot say that the order now under consideration is clearly erroneous. The ease is a peculiar one. The material testimony was nearly all introduced on the part of the plaintiff, and it is not very clear that it establishes a case of extreme cruelty, as that term is used in the law; nor is it entirely clear that it does not. Piad the testimony been taken before the judge of the district court, and had he, after reviewing the evidence, been satisfied with the finding and denied a new trial, we probably should not have disturbed the order. But the district judge was not satisfied with the finding. Pie had not the advantage of seeing…