Newman v. Overland Pacific Railway Co.

HARRISON,J.

—The above cause was tried by the court without a jury, and upon the findings of fact made by it, judgment was rendered in favor of the plaintiff. The defendant

[74]

afterwards moved for and obtained an order granting a new trial. From this order the plaintiff has appealed.

In defendant’s notice of motion it designated as the grounds upon which the motion would be made,

“

insufficiency of the evidence to justify the decision,” and “errors of law occurring at the trial.” Specifications of particulars wherein it was claimed that the evidence was insufficient, and of various errors of law upon which the defendant relied, were made in the statement of the case which was afterwards filed, and upon which the motion was heard. After hearing the motion, the court made the following order: “In this action the motion for a new trial herein having been heretofore submitted to the court for consideration and decision, and now the court having fully considered the same, it is ordered by the court that the said motion be and the same is hereby granted.” In the minutes of the court the clerk added, immediately after the above order, the words, “(Opinion filed).” On the same day the following opinion was filed: “In view of the rule laid down in

Pauly

v. Pauly, 107 Cal. 18,

1

and in

Golinsky

v. Allison, 114 Cal. 461, it would seem that Hunt had no power to bind the corporation defendant by executing the notes in question, and on the authority of those cases the motion 'for new trial is granted.”

The rule is firmly established that the superior court is not only authorized, but that it is its duty, to grant a new trial whenever, in its opinion, the evidence upon which the former decision was made was insufficient to justify that decision. Its action in granting a new trial upon this ground is so far a matter within its discretion that, if there is any appreciable conflict in the evidence, it is not open to review in this court