Grigsby v. Shwarz
Before: Thornton
Synopsis
Appeal from an order of the Superior Court of Napa County granting a new trial.
It is alleged in the complaint that defendant Allen is constable of Napa township; that on February 28, 1885, one T. L. Grigsby was the owner in fee and in the possession of the premises described in the complaint; that on the last-named day T. L. Grigsby transferred the title to said premises to A. F. Grigsby and William A. Trubody, and that such transfer was so made to secure the last-named persons against loss by reason of their executing a note with said T. L. Grigsby to James H. Goodman & Co.; that on March 17, 1885, T. L. Grigsby sold said premises to plaintiff, and on March 18, 1885, T. L. Grigsby by his writing directed A. F. Grigsby and William A. Trubody to transfer the title to the same to plaintiff, and from the last-named day until November 28, 1885, said parties held the title in trust for the plaintiff, and that from March 18, 1885, up till the time of filing the complaint, on March 31,1886, the plaintiff was in the actual possession of the premises, claiming title to the same; that on the twenty-eighth day of November, 1885, A. F. Grigsby and William A. Trubody transferred said premises to plaintiff, and that from the seventeenth day of March, 1885, “ the said T. L. Grigsby has not had, nor does he now have, any possession of, or .any right, title, interest, claim, or demand, either in law or in equity, of, in, or to the said premises, or any part or portion thereof”; that on March 18, 1885, defendant Shwarz commenced an action in the justice’s court against T. L. Grigsby, and obtained a judgment therein on April 2, 1885; that on May 16, 1885, an abstract of this judgment was filed with the county recorder of Napa County, and on March 2, 1886, execution on this judgment was issued and placed in the hands of defendant Allen as constable, who levied the same on March 3, 1886, on said premises, and threatens to sell the same, and will sell the same unless restrained, and will thereby cast a cloud on plaintiff’s title. The prayer is for an injunction and general relief. Further facts are stated in the opinion of the court,
Thornton, J. The appeal in this case is by defendants, from an order granting plaintiff’s motion for a new trial.
The complaint states facts sufficient to constitute a cause of action. (Shattuck v. Carson, 2 Cal. 588, and cases cited in note of 2d ed. of 2 Cal. 588; Pixley v. Huggins, 15 Cal. 127; England v. Lewis, 25 Cal. 337.)
Plaintiff’s motion for a new trial was made on the ground, inter alia, of insufficiency of the evidence to justify the decision. Nothing appearing to the contrary, we must presume that the court granted the motion on this ground. Every intendment is to be made consistent with the record to sustain the correctness of the judgment of the court below. Where a new trial is [281]granted on the ground above stated, this court never interferes with it, unless there has been an abuse of discretion. Such a motion is submitted to the sound legal discretion of the court below, and a manifest abuse of such discretion only induces this court to reverse it. This is settled by more than a dozen cases decided here. In Breckinridge v. Crocker, 68 Cal. 403, nearly all the cases on this point decided before the decision in that case are cited. There have been several cases since decided the same way. We find no abuse of discretion by the court below in this case.
The trial court did not err in refusing to allow plaintiff’s counsel to read the deposition of plaintiff, taken previous to the trial by defendants. The plaintiff had been offered as a witness on his own behalf, and fully examined by his counsel. He was then present in court. It is not made to appear that there was anything in the' deposition concerning which the plaintiff might not have been fully questioned by his counsel when he was on the stand as a witness. Under these circumstances, we regard it as entirely a matter of discretion in the court below to permit the reading of the deposition or not, and its refusal to permit it is a matter which this court would not revise on appeal.
In ruling as above we do not intend to hold or not to hold that if the deposition of a party has been taken by his adversary, it may not be read on behalf of the party whose testimony has been so taken, though the latter is present in court. The question just stated we do not wish to be regarded as deciding.
The ruling here is confined to the facts stated above, arising on the record before this court.
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