Karst v. Finn

KERRIGAN, J.

This is an action in conversion. Plaintiff alleges in her complaint that she was the owner and entitled to the possession of a certain automobile, which she alleges was wrongfully taken away, converted, and sold by defendant, Thomas F. Finn, sheriff of the city and county of San Francisco, to satisfy a judgment which the sheriff’s codefendant, Cuyler Lee, had obtained against one E. J. White.

The trial was had before a jury, which returned a verdict for plaintiff in the sum of $750 damages against both defendants.

Thereafter defendants moved for a new trial, which was granted, and the plaintiff appeals from that order.

[370]

One of the grounds upon which the motion for a new trial was made is the insufficiency of the evidence to justify the verdict, and the evidence is before us. The order of the court granting a new trial is in general terms, without specifying the grounds of this

action;

and, in support of the order, we will assume that it was made upon the ground of insufficiency of the evidence.

(Weisser

v.

Southern Pacific Co.,

148 Cal. 426, [7 Ann. Cas. 636, 83 Pac. 439] ;

Morgan

v.

J. W. Robinson Co.,

157 Cal. 348, [107 Pac. 695];

Gordon

v.

Roberts,

162 Cal. 506, [123 Pac. 288].)

It is also the rule, firmly established, that the superior court is authorized to grant a new trial if in its opinion the verdict is against the weight of evidence. Its action in so doing is the exercise of a legal discretion, which has been confided to it, and can be reviewed on appeal only when it is made to appear that the discretion was abused.