Mountain Tunnel Gravel Mining Co. v. Bryan

Garoutte, J. This is an action of ejectment brought against various defendants, each defendant being in possession and claiming separate portions of the tract of land described in the complaint. Defendants answered separately, denying plaintiff’s claims, and, as affirmative defenses and by way of cross-complaint, set out equitable titles, and asked for specific performance. [37]The trial court found against the claims of plaintiff and decreed specific performance. Plaintiff appealed from the judgment, and álso moved for a new trial upon various grounds, which motion was granted by the court in part and denied in part. The court, after declaring that in its opinion certain findings of fact, enumerating them seriatim, were not supported by the evidence, made the following order: “ It is ordered that a new trial be and the same is hereby granted as to the issue of fact involved in the said proceedings, the evidence at said new trial to be directed solely to the issues of fact therein involved.” And thereupon denied the new trial upon all other grounds. This appeal is by plaintiff from the order, upon the ground that a new trial should have been granted as to the entire action.

Appellant insists that findings numbered 33, 35, and 36, are not supported by the evidence. The facts covered by those findings relate solely to the rights and claims of defendant and respondent Bryan, and as he has not deemed the matter of sufficient importance to appear before this court, either by oral or written argument, and point out, in a somewhat voluminous record, where the evidence may be found which supports these findings of fact, we will assume there is no such evidence; and for that reason will order a new trial of the entire case as to respondent Bryan. (Kelly v. Bradbury, 104 Cal. 237, and cases there cited.)

It is insisted that the findings do not support the judgment. But respondents Scherer and Clark urge as a bar to the consideration of that question that the judgment cannot now be attacked, for the reason that it was set aside by the order granting the new trial as to certain portions of the case. "This contention cannot be sustained. As to what effect an order granting a new trial by the trial court has upon the judgment, we refer to the very recent case of Pierce v. Berkholm, 110 Cal. 669, where the question was directly involved and carefully considered. It was there concluded that an order made by the trial court granting a motion for a [38]