Minturn v. Bliss — 77 Cal. 90

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p. 90

[No. 12328.

In Bank.

September 22, 1888.]

R. R. MINTURN, Appellant, v. GEORGE D. BLISS, Respondent.

Headnote

Order Granting New Trial — Review on Appeal. — If the grounds of the motion for a new trial include insufficiency of the evidence to justify the decision, and the evidence is conflicting, and also errors of law committed at the trial, which are conceded to be such by respondent, but claimed to he harmless, and it does not appear upon what ground the motion was granted, the order granting the new trial will not he reversed on appeal.

Id. — Discretion. — An application for a new trial is addressed to the legal discretion of the court, and in the absence of a clear showing to the contrary, it will be presumed that its discretion was properly exercised.

Appeal from an order of the Superior Court of Fresno County granting a new trial.

The facts are stated in the opinion.

W. D. Grady, for Appellant.

J. K. Law, for Respondent.

This is an appeal by the plaintiff from an order granting the defendant a new trial. The motion was made upon the grounds, among others, that the evidence was insufficient to justify the decision, and that errors in law were committed at the trial and excepted to by the defendant. It does not appear upon what ground the motion was granted, but, as has frequently been held, if it might properly have been granted upon any one of the grounds specified, the order cannot be reversed here.

There was a conflict of evidence upon some material points, and it is conceded by counsel for respondent that the court erred in admitting some of the evidence offered by the plaintiff. It is claimed, however, that the errors were harmless.

The application was addressed to the sound legal dis

p. 91

cretion of the court, and in the absence of a clear showing to the contrary, it will be presumed that its discretion was properly exercised. Looking at the whole record, we cannot say that the court abused its discretion, and we therefore advise that the order be affirmed.

Hayne, C., concurred.

For the reasons given in the foregoing opinion, the order is affirmed.