TERRY, J. — This cause- was tried below by a jury, who rendered a verdict for plaintiff. A motion for a new trial was made, both by plaintiff and defendant, and a new trial ordered by the court. It cannot be contended that the order granting a new trial at the instance of both the parties litigant was such an abuse of discretion on the part of the court below as would justify a reversal of the order. An appeal was taken by the plaintiff apparently for the purpose of procuring an expression of opinion on the part of the judges of this court on various questions which were raised on the trial below.
To this end it is stipulated that a new trial was refused to the plaintiff and was granted to the defendant. These orders are assigned as error, and the court is requested to pass upon various points which are presented by the parties. As these points are not raised by the record or necessary to the decision of the question before us, we have declined to investigate them. The judgment is affirmed. I concur: Murray, C. J.