Garnier v. Grimaud — 2 Cal. Unrep. 214

Majority

p. 214

GARNIER, Respondent, v. GRIMAUD et al., Appellants.

No. 9148;

October 12, 1883.

Headnote

New Trial—Discretion of Court.—A Motion for a New Trial is addressed to the sound discretion of the trial court, and where that discretion has not been abused the order upon that motion will not be disturbed.

Appeal.—With No Valid Bill of Exceptions Before It, or valid statement of the evidence, the appellate court must presume correctness on the part of the court below in granting a new trial.

APPEAL from Superior Court, Los Angeles County.

H. Allen and John Robarts for respondent; Glassell, Smith & Patton and J. Brosseau for appellants.

This is an appeal from an order granting a new trial. Such a motion is addressed to the sound discretion of the court below, and this court will never interfere with the ruling of the trial court unless there is an abuse of discretion. In this case we see no such abuse. The motion is made and was heard on the minutes of the court. No statement setting forth the evidence as required by law (Code Civ. Proc., see. 661) was made, and we cannot know on what evidence the court below acted. The bill of exceptions is not such a document as the statute requires to set forth this

p. 215

evidence. We must presume, then, that the court below ruled correctly.

As to the notice of intention to move for a new trial, we are of opinion that the particulars of the insufficiency of the evidence to sustain the decision of the court are sufficiently set forth in the notice. Further, we are of opinion that the court might well have granted the new trial on the affidavits presented.

The order is affirmed.