Wheeler v. Kassabaum

McKinstry, J. There is no evidence in the transcript to sustain the finding of five hundred dollars damages. The order denying a new trial must therefore be reversed.

There are other portions of the judgment which are not justified by the evidence or findings, but as a judg[92]ment falls upon the entry o'f an order granting a new trial, it is not necessary to indicate such portions of the judgment.

The appeal from the judgment has been dismissed, and the sufficiency of the complaint cannot be considered on the appeal from the order denying a new trial. (1 Hayne on New Trial, sec. 1; Mason v. Austin, 46 Cal. 385; Jacks v. Buell, 47 Cal. 162; Onderdonk v. City of San Francisco, 75 Cal. 534.)

It may further be suggested that the real question between the parties hereto was not the right to the possion of a branding-iron, but was as to the right to use a certain brand. If the right was exclusively in the plaintiff, equity alone could afford him effectual relief.

Order reversed and cause remanded, with directions to the court below to enter an order granting a new trial.

Paterson, J., and Temple, J., concurred.