Hammel v. Stone
Before: Foote
Synopsis
Appeal—Order Granting New Trial—Intendment.—On appeal from an order granting a new trial, made by a judge other than the one who presided at the trial of the cause, on the ground that the evidence was not sufficient to support one of the findings of fact, every intendment prevails in favor of the correctness of such order, and such intendment must be overcome by an affirmative showing of error, and an abuse of that sound legal discretion which the lower court was called upon to exercise in relation to the matter, in order to justify a reversal of such order by the appellate court.
FOOTE, C. This is an appeal from an order granting a new trial, made by a judge other than the one who presided at the trial of the cause. The order was made upon the ground that the record did not show sufficient evidence to support one of the findings of facts. Every intendment prevails in favor of the correctness of such an order, made in the manner above specified, and such intendments must be overcome by an affirmative showing of error: Blum v. Sunol, 63 Cal. 341. It is the well-settled rule of this court that unless the court below is shown to have abused that sound, legal discretion which it is called upon to exercise in relation to such a matter, its order in the premises will not be disturbed: Savage v. Sweeney, 63 Cal. 340; Breckenridge v. Crocker, 68 Cal. 403, 404, 9 Pac. 426, and cases there cited.
We perceive no abuse of that discretion in the present instance, and the order should be affirmed.
We concur: Belcher, C. C.; Hayne, C.
By the COURT.—For the reasons given in the foregoing opinion the order is affirmed.
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