Phelps v. Union Copper Mining Co.

Sprague, J., delivered the opinion of the Court:

This appeal is from an order of the Court below, granting a new trial, on motion of defendants, which motion was made upon notice, embracing all the statutory grounds of a motion for a new trial, followed by a statement of the evidence and specifications, stating wherein the evidence was insufficient to sustain the verdict, and special assignment of errors of law occurring at the trial, to which defendants duly excepted, and upon which they would rely on such motion.

In granting the defendants’ motion, the Court did not state the grounds upon which the motion Avas granted.

The action is ejectment for the recovery of the possession of an undivided one thirteenth part of a certain mining claim, known as the Union Company Claim.

The principal and controlling question to which the evidence on the trial seems to have been directed, was whether one G. Reed, whose name appeared on the notice first posted on the claim, as one of the original locators, was George Heed, the brother of William K. Reed, through whom plaintiff derives title, or George Beed, the cousin of William K. [410]Beed, through whom one of defendants derived title to the premises in controversy.

The evidence introduced on the trial bearing upon the question, as to which of these George Reeds was intended by name of G. Reed, found upon the original notice of location, is substantially conflicting; and even had all such evidence been admitted, without objection to any portion thereof on the ground of incompetency, and the Court below, in the exercise of its sound discretion, granted a new trial on motion based on a statement embodying such evidence, upon the ground of insufficiency of the evidence to justify the verdict, specifying the particulars in which such evidence is alleged to be insufficient, we should not feel at liberty to disturb such order.

It has uniformly been held by this Court that a motion for a new trial, on this ground, is addressed to the sound legal discretion of the Court, in which the trial was had, and that, on appeal from an order of such Court granting a new trial, this Court will not reverse the order, unless it appear there has been a manifest abuse of such discretion. (Hall v. Bark Emily, 33 Cal. 522, and cases there cited.)

In this case we discover no such abuse of discretion as to justify a reversal of the order; on the contrary, the record discloses a case clearly justifying the action of the Court in granting a new trial.