Blum v. Sunol

McKee, J. The action in this case was tried and decided" by -the late District Court of Contra Costa County. After decision and judgment a motion was made for a new trial upon a bill of exceptions. Before the motion was heard the attorney for the plaintiff, having been elected judge of the Superior Court of the county, became disqualified from acting in the case, and the action was removed and transferred to the Superior Court of the city and county of San Francisco. There the motion was argued and submitted, and after a review of the evidence contained in the certified bill of exceptions, the court sustained' the motion and ordered a new trial, and from the order this appeal has been taken.

Although the order was made by the successor of the trial court, or rather by another judge than the one who tried the [343]cause, yet as every intendment prevails in favor of its correctness, the appellant is bound to overcome such intendments by affirmatively showing prejudicial error. Ho such error has been made to appear.

The issues tried involved the genuineness of certain instruments in writing, through which defendants claimed title to the real property in controversy in the case. Upon those issues much documentary and oral evidence was given by both parties; and, from an examination of the evidence contained in the record, we are of opinion there was no abuse of discretion by the court below in granting a new trial.

Where a finding has been made upon a conflict of evidence, or contrary to evidence, or without evidence, this court does not interfere with the action of the lower court in granting a new trial, although the evidence upon which it has acted may consist, as it does in this case, of depositions and documentary and oral evidence. (Canning v. C. P. R. R. Co. 50 Cal. 166; Parrott v. Floyd, 54 Cal. 534; Macy v. Davila, 48 Cal. 646; Altschul v. Doyle, 48 Cal. 535.)

Order affirmed.

McKinstry, J., and Boss, J., concurred.

Hearing in Bank denied.