Condee v. Gyger

THE COURT.

—This is an appeal by plaintiff from an order granting defendants’ motion for a new trial. The motion was upon the grounds of newly-discovered evidence and the other statutory grounds. At the hearing the court made the following minute order: “The motion heretofore made for a new trial .of this cause is this day granted by the court.”

Appellant contends that as the court assigns no reason for

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its order, and as the court must have given careful consideration to all the facts at the trial, the motion presumably was granted alone on the affidavits showing newly-discovered evidence. No such presumption can be indulged. It must rather be presumed that the court reconsidered and passed upon the sufficiency of all the evidence in the ease in granting the motion, for it was its duty to do so; and in this appeal, the court having granted a new trial, “the presumption is against the findings and not in their favor.”

(Hass v. Mutual etc. Assn.,

118 Cal. 6.) Where the order granting the new trial is silent as to the ground on which it was made, and the record shows' the ■existence of a valid ground, this court will presume that the order was made upon that ground.

(Curtiss v. Starr,

85 Cal. 876.) It is the duty of the judge of the trial court to grant the new trial whenever he is not satisfied with the verdict, if tried by a jury, or with the findings, if tried by the court

(Curtiss v. Starr, supra);

and he is not bound by the rule as to conflicting evidence, as is this court.

(Curtiss v. Starr, supra,

and cases cited;

Bjorman v. Fort Bragg Ry. Co.,

92 Cal. 500.)

The action is by the assignee in insolvency of one J. W. Nance, upon a promissory note which the court found was executed by defendant for the sum of five thousand dollars to Los Angeles National Bank, on which Nance made the following indorsement: "I guarantee the payment of this note at maturity and waive demand, presentment for payment, protest and notice of protest.” The note became due February 25, 1892, and the court found that on April 11, 1892, Nance paid the bank five thousand one hundred and fifty dollars and twenty-seven cents, the balance then due, principal and interest, and the bank surrendered the note to Nance, who was its owner when he became insolvent; that defendants deposited with the bank, at the execution of the note, certain eleven bonds of the Perris Irrigation District, of the par value of five hundred dollars each, as collateral security, which were delivered to Nance with the note, and that on March 30, 1893, he sold the bonds for the highest market value, to wit, for four thousand one hundred and twenty-five dollars; that except one hundred and sixtv-five dollars paid to the bank on account of interest, by the irrigation district, no payments were made on said note by defendants,