Drake v. Palmer, Cook & Co.

Mr. Ch. J. Murray delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred. [12]On the first trial of this case,† which was an action of trespass, the plaintiffs recovered a judgment for the sum of $4,666 66. The Court below set aside the verdict of the jury, and granted a new trial, from which order the plaintiffs appealed. Upon the decision of this appeal, we held that the right of granting or refusing new trials was discretionary with the Court below, subject, however, to the review and control of this Court, in cases of-gross-or wilful abuse. On the second trial of the case, the jury rendered a verdict for the plaintiffs for $5,000. The defendants moved for new trial, which motion was refused, from which ruling they appealed.

Several grounds of error have been assigned, all of which are frivolous, and unworthy of the serious consideration of this Court.' The action was for trespass; the question of damages is a question particularly for the determination of the jury. Two juries have found almost equal verdicts, and there being no error in the record, the judgment of the Court is sustained.

Reported in 2 Cal. 177.