Thompson v. Wheeler

BURNETT, J.

Defendant had judgment, but the trial court granted plaintiff’s motion for a new trial. From this order the appeal was taken.

The record does not show what evidence was used upon the motion for a new trial, nor upon what ground the court based its order. The notice of motion is not disclosed. In reference to the matter all that the transcript reveals is: “Whereupon, within the time by law prescribed therefor, plaintiff filed with the Clerk of said Court and served upon defendant, notice of her intention to move said Court to vacate said decision and to grant plaintiff a new trial of said action”; and: “The Court this day made an order that plaintiff’s mo

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tion to vacate and set aside the decision rendered in said action, heretofore argued and submitted, be and the same is hereby granted, to which order the defendant duly excepted. ’ ’

In

Skinner

v.

Horn,

144 Cal. 280, [77 Pac. 905], the supreme court, speaking through Mr. Justice Angellotti, said: “The, presumption is that the order granting a new trial was properly made, and, in the absence of a bill of exceptions showing what was used on the motion, unless the record on appeal establishes the contrary, it will be conclusively presumed in favor of the order that the motion was in part based upon some ground upon which affidavits could be used, that affidavits were in fact used on the hearing, and also that such affidavits were sufficient to justify the court in the making of the .order appealed from. If, therefore, the appellant fails to present a record which shows affirmatively that the lower court erred in granting a new trial,

such failure will operate solely to his own disadvantage.”

In the same case, reported in

Skinner

v.

Horn,

146 Cal. 62, [79 Pac. 597], in the opinion by the chief justice referring to the previous order of the supreme court denying the motion to amend the record, is found the following declaration: “We held that a party appealing from an order must bring up a record demonstrating conclusively that the lower court erred in its ruling or must fail in his appeal, and that an order granting a new trial must be affirmed when the record contains nothing but a statement on motion for a new trial, and fails to show that the motion was not based also upon one or more of the grounds which require affidavits for their support. . . .