Pico v. Cohn

Thornton, J. This is an appeal from an' order granting the motion of defendants for a new trial. The notice of. the motion for a new trial stated that it would be made on errors of law, and the insufficiency of the evidence to justify the decision.

As the errors of law were not specified as directed by the Code,, we must presume that they were, in accordance with the statute (Code Civ. Proc. § 659, subd. 3), disregarded. The ground of insufficiency of evidence alone remains.

On the hearing of the above motion, the court, on the 24th of May, 1884, made an order granting it, unless the plaintiff within five days file his written consent to a modification of the decree herein, so that it shall require the payment by plaintiff to defendants within thirty days from the date of the order of the sum of $138,000, with legal interest from such date, instead of the sum of $103,000 as stated in the decree, and on the filing by the plaintiff within the time mentioned of his assent to such [259]modification, the new trial be denied and the judgment modified accordingly. The plaintiff refused his consent to this modification, and a new trial was ordered.

The order could only have been granted on the grounds on which it was asked by defendants. The defendants had nothing to say, and were not called on to say anything in regard to the modification set forth in the above order. The plaintiff having refused to give his consent, the motion of defendants then stood as if no such order had been made.' We are thus driven to pass on the order for a new trial as having been made on the insufficiency of the evidence to justify the court’s decision. If we were to reverse the order, the judgment for $103,000 would stand unchanged, although the court had substantially admitted an error in the decree in requiring the plaintiff to consent to a change in it, requiring him to pay a much larger sum, as a condition to its refusing defendants' motion. This would seem to be, under the circumstances, clearly unjust.

The learned counsel for plaintiff is obviously mistaken in assuming that the defendants, in their specifications of the insufficiency of the evidence, have failed to make objection to so much of the findings as would justify the judgment rendered by the court below, or that their specifications only extended to the amount which the plaintiff should be adjudged to pay.

It will be observed that the case of plaintiff rests upon the allegation that defendant Cohn agreed to advance, and did advance certain sums of money to plaintiff, to secure the payment of which the deed executed by him to defendants, sought herein to be declared and adjudged a security, was given. This was denied by defendants, who set up that there was no advance made or agreed to be made by Cohn, but that the money paid to the plaintiff by defendants was a payment for the property in controversy, absolutely purchased of plaintiff by defendants, and that the deed was made on such purchase, and not at all as security for the payment of any sum* whatever. ISTow one of the specifications of insufficiency goes to this issue. The defendants set forth in their specifications that the evidence is insufficient to sustain so much of finding four as finds that it was understood and agreed that said Cohn should advance the amount of said liens as estimated by him, but on the contrary,