Work v. Whittington

[303]

FINLAYSON, P. J.

This is an appeal from an order granting plaintiff a new trial in an action tried by a jury.

Plaintiff, the holder of two promissory notes executed by defendants as the makers and indorsed by the payee, brought the action to recover on the notes. He claimed that they had been indorsed and delivered to him before maturity, in due course, and without notice to him of any infirmity in them, and that he paid full value therefor. Wherefore he claimed that he was entitled to recover regardless of any fraud which the payee may have practiced upon these defendants.

Plaintiff’s motion for a new trial was made upon all of the statutory grounds. The court’s minutes state that it was granted on the ground of the “insufficiency of the evidence to

warrant

the verdict.” This, we think, is equivalent to specifying, as the ground of the order, the insufficiency of the evidence to “sustain” the verdict, within the purview of the concluding provision of section 657 of the Code of Civil Procedure.

If there is any appreciable conflict in the evidence the action of the trial court in granting a new trial is not open to review here. The granting or refusing of a new trial is a matter largely within the discretion of the trial court, and it is only when that discretion has been abused that the appellate court will reverse the order.

(Merralls

v.

Southern Pac. Co.,

182 Cal. 19, 22 [186 Pac. 778].)

Even in cases where there may not appear to be a conflict in the evidence, and where all the proofs seem to be favorable to one or the other of the parties litigant, the question as to the probative force or the evidentiary value of the testimony is one the determination of which is with the trial court in a proceeding on a motion for new trial, where, as here, one of the grounds is the insufficiency of the evidence to justify the verdict.

(Otten