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Savage v. Sweeney

63 Cal. 340 Court Cal. Decision date 1883-04-21 English

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Majority

p. 340
[In Bank.
April 21, 1883.]
RICHARD SAVAGE, Respondent, v. DANIEL SWEENEY, Appellant.

Headnote

New Tbial—Appeal—Pbesumption.—The action was brought to recover a balance alleged to be due for work done and materials furnished in the construction of certain buildings. The case was tried by the court without a jury, and a decision rendered in favor of the plaintiff for a portion of the amount claimed. The plaintiff moved for a new trial on several grounds, and among others that the evidence was insufficient to justify the decision. The motion was granted, but it did not appear on what ground. The defendant appealed from the order. Meld, that every intendment must be indulged to sustain the judgment, and that the court is authorized to presume that the motion was granted on the ground of insufficiency in the evidence.
Id.—Disoeetion of the Coubt.—A motion for a new trial is addressed to the sound discretion of the court, and no abuse of discretion appearing, an order granting the motion will not be disturbed.
Appeal from an order of the late District Court of the Nineteenth Judicial District, granting a new trial.
The facts necessary to be stated appear in the head notes and opinion of the court.
Jarboe & Harrison, for Appellant.
R. R. Provines, for Respondent.

This action was tried by the court, and. the

p. 341
decision was in favor of plaintiff. The plaintiff, nevertheless, moved for a new trial on the ground inter alla, that the evidence was insufficient to justify the decision. The court granted the motion, and from this order the defendant appealed.

It does not appear upon what grounds the new trial was granted, and, therefore, as every intendment must be indulged to sustain the judgment of the court below, this court is authorized to presume that it was granted on the insufficiency of the evidence to sustain the decision.

In relation to this, it is the well-settled rule of this court that such motion for a new trial is addressed to the sound discretion of the court, and an order granting it will not be disturbed unless it appears that the court below has abused its discretion in so ruling. (Pierce v. Schaden, 55 Cal. 406 ; Bronner v. Wetzlar, 55 Cal. 419 , and cases cited.)

No such abuse appears in this cause, and the order is affirmed.

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