majority">Dillon, Ch. J.

1. New trial: evidence not under oath, No motion was made for a new trial, on the ground that the verdict was against the evidence. So far as the motion was based upon alleged erro- « ' 4 , , x 43 neous instructions it was overruled, and no *509exceptions taken. The motion was sustained, upon the sole ground that the failure to have sworn a witness who gave evidence for the plaintiff, entitled the unsuccessful defendant, as a matter of law, and, under the circumstances, to a new trial.

That the witness was not sworn is not a disputed fact. As the motion was sustained by the court below, and the testimony of the witness is not in the record, it is the duty of this court to presume that the evidence was material in its character, and unfavorable to the defend-, ant. ' It is also an undisputed fact, that the defendant, though present during the whole trial, failed to show to the court that he did not know that the witness had not been sworn. He is wholly silent upon this point. His attorney, it is true, did not know that the witness had not been sworn until after the jury had retired.

It is to be presumed, that, in framing these affidavits, the defendant’s attorney stated the facts as strongly for his client as the truth would permit.

If he discovered, at any time before the jury had returned their verdict, that the witness had not been sworn-, he should, to entitle him to a new trial on this ground as a matter of right, have notified the court thereof, if in session, to the end that it might have recalled the jury, and, if necessary, 'had the witness reproduced or examined under oath, or other proper steps taken to prevent a mistrial. The defendant’s attorney did not negative the fact that he may have made this discovery before the verdict was returned, and his statement, that he did not learn this fact until after, the jury had retired, favors the notion (in view of the strict construction which affidavits of this character should receive) that he was aware of the fact before the verdict was returned.

As the defendant was present in person during the trial, and made no showing of his ignorance of the fact *510that the witness was not sworn, and as the attorney failed to negative the fact of a like ignorance on his part down to the time the verdict was returned, we are of opinion that the District Court ought to have overruled the motion for a new trial. Paries v. The State, 4 Ohio St. 234; Eastman v. Wight, id. 160 ; Slaughter v. Wheelock, 12 Ind. 338.

3. - review of action of court below: Discretion. The appellee’s attorney has argued, that, as the District Court was familiar with all the circumstances of the case, an<^ granted the motion, this court ought not to overrule the action of that court; no abuse o£ ¿[jsere^on being shown. The rule alluded to has no application to such a case as the present.

Whether the defendant was entitled to a new trial upon the grounds npon which it was granted was a matter of law purely, and not of discretion, and the action of the District Court will, in such cases, be reviewed with the same freedom and upon the like principles as its ruling upon any other question of law. Stewart v. Ewbank, 3 Iowa, 191; Shaw v. Sweeney, 2 G. Greene, 587; Ruble v. McDonald, 7 Iowa, 90; Shepherd v. Brenton, 15 id. 84, 90, per Wright, J.

The judgment of the District Court is reversed, and the cause remanded with directions to overrule the motion for a new trial on the ground on which it was sustained.

Neversed.

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