Webster v. Suiter

JAMES, J.

Defendant appeals from an order of the superior court granting the motion of plaintiff for a new trial. The action was brought upon a promissory note executed by defendant. It was claimed on the part of the defendant that the note had been paid by the assignment of another promissory note owned by defendant. The latter note defendant had delivered to the Bank of Kern with the understanding, as he testified, that it was to be received by said bank in ex-tinguishment of the indebtedness owing by him to plaintiff’s assignor on the note here sued upon, and also in extinguishment of an indebtedness owing by defendant to said bank. Defendant sought to prove that the Bank of Kern, in receiving the note under the alleged agreement mentioned, was acting on its own behalf and also as the agent of plaintiff’s assignor. These matters were controverted by evidence offered on behalf of the plaintiff, and the trial court made its findings in favor of defendant. Subsequently thereto plaintiff gave notice of intention to move for a new trial on various statutory grounds, among them specifying that the evidence was insufficient to justify the decision of the court, and also that she had discovered new evidence material to her case which she could not have produced with reasonable diligence

[392]

at the trial. The motion for a new trial was thereafter presented and the court made a general order directing that the same be granted. For aught that appears in the record, the motion for a new trial may have been granted because of the insufficiency of the evidence, and if it was granted for that reason, of course, under the well-established rule governing the review of such matters on appeal, the order cannot be disturbed. Counsel for appellant in his brief makes the statement that the only showing made by plaintiff in the lower court in support of her motion for a new trial was by submitting affidavits of newly discovered evidence, which he insists were not sufficient to authorize the court to grant said motion. There is nothing in the record, however, which substantiates this contention, and even if it was a fact that all of the argument made at the hearing of the motion for a new trial was directed to the point as to evidence newly discovered by the plaintiff, the plaintiff would still be entitled to have all of the grounds mentioned in her notice of intention to move for a new trial considered by the trial court, and we must presume that they were so considered. In the case of