Weisser v. Southern Pacific Ry. Co.

ANGELLOTTI, J.

This is an action for damages for personal injuries alleged to have been suffered by plaintiff through the negligence of defendant while he was engaged in the service of said defendant. The jury impaneled to try the cause rendered a verdict in favor of plaintiff for nine thousand dollars, and judgment was entered accordingly. Defendant regularly made a motion for new trial on practically all the grounds authorized by statute, including that of insufficiency of the evidence to justify the verdict, and

[428]

in its statement on motion for new trial specified with great particularity the particulars wherein it was claimed that the evidence was insufficient. The trial court disposed of such motion by making a general order granting the same, the minute order being as follows, viz.: “Defendant’s motion for new trial ordered to be and the same is hereby granted. ’ ’ Plaintiff appeals from such order granting defendant’s motion for new trial.

It is suggested by plaintiff that the order of the trial court was based upon two grounds only,—viz., error in admitting certain evidence, and insufficiency of the evidence to sustain a conclusion that the plaintiff was not guilty of contributory negligence,-—and that this court is limited to a consideration of these questions upon this appeal. In support of this claim that the order was made for these reasons alone, he sets forth in his brief a copy of a letter written to his counsel by the judge of the trial court some months after the granting of the new trial. This letter, of course, constitutes no part of the record on appeal, and could not be made a part thereof.

(Hanna

v.

De Garmo,

140 Cal. 172, 174, [73 Pac. 830].) Even if the same had been written and filed at the time of the granting of the new trial, it could not have operated to limit, the effect of the general order entered on the minutes of the court, which order so entered is under the decisions the only record of the court’s action. Any limitation, to be effectual, must be specified in the order.

(Ben Lomond Wine Co.