Estate of Bainbridge

At the close of the argument Bawlor, J., delivered the opinion of the court, Shaw, J., and Sloss, J., concurring:

This is an appeal from an order of the superior court of the city and county of San Francisco setting aside the verdict of the jury and granting a new trial of the contest of the will of the deceased, the verdict having been in favor of contestant, on the grounds of undue influence, fraud, and unsoundness of mind.

The will was admitted to probate, and thereafter Mary J. Mayfield, a niece of the testatrix and a legatee under the will, filed her petition for revocation of the probate thereof.

After the verdict of the jury, a motion for a new trial was interposed on behalf of the proponents, and by the court ordered granted on the ground of the insufficiency of the evidence to support the verdict.

The appellant relies for a reversal of the order solely on the ground that under the provision of the constitution—“the right of trial by jury shall be secured to all and remain inviolate”—(art. I, sec. 7), the trial court was without power to set aside the verdict of the jury on the ground of the insufficiency of the evidence.

This point has been decided adversely to the contention of the appellant in many cases. The precise constitutional question was raised in

Ingraham

v.

Weidler,

139 Cal. 589, [73 Pac. 415], where it is said:

“Appellant contends that section 657 of the Code of Civil Procedure, so far at least as it provides for a new trial for the causes of ‘ insufficiency of the evidence to justify the verdict’ and ‘excessive damages, appearing,’ etc., is void, because violative of section 7 of article I of the state constitution, which declares that ‘the right of trial by jury shall be secured to all’; but there is no ground for this contention. The courts in this country, and in England since long before the time of Blackstone, had always exercised the power of granting a new trial after verdict, and for the causes, among others, of insufficiency of evidence, or that the damages were either inadequate or excessive (3 Blackstone’s Commentaries, 387, et seq.), and this power was a recognized part of the 1 right of trial by jury,’ as that phrase is used in the constitution.”

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