Johnstone v. Johnson

THE COURT.

Plaintiffs, as lessees, brought this action alleging that they had been evicted from the possession of certain leased premises known as the Peach Bowl Hotel, and praying for general and exemplary damages. Defendants denied generally all of the allegations of the complaint, and in a separate defense set forth the service of a notice to vacate or to pay rent.

The action was tried before a jury and a verdict of $'700 damages was returned in favor of plaintiffs. Plaintiffs then moved for a new trial upon various grounds, among others, that the verdict in the sum of $700 was, according to the evidence, inadequate and given under the influence of prejudice.

Upon the hearing an order was made denying the motion for a new trial, except as to the single issue as to the amount of damages, and as to that, the motion was granted upon the

[702]

ground the evidence was insufficient to sustain the verdict. From that order this appeal was taken by the defendants and lessors.

It is now the contention of respondents, the lessees and plaintiffs in the action, that there were two separable issues presented to the jury; the first, the wrongful eviction from the-premises, and secondly, the damages suffered. They also contend these issues were so clearly separable that a new trial could be had as to either issue, and as the record now stands a new trial could be confined to a hearing on the question of damages alone.

There is no doubt that where there are several issues of fact presented in a ease, which are distinct and separable in their nature, the court may grant a new trial as to one issue and deny the motion as to others, and that when such a new trial is granted it opens for reexamination the issue which is ordered only, and as to other issues there shall be no retrial.

(Henslee

v.

Fox,

25 Cal. App. (2d) 286 [77 Pac. (2d) 307] ;

Estate of Everts,

163 Cal. 449 [125 Pac. 1058].)