Commander Oil Co. v. Bardeen

McCOMB, J. From an order granting plaintiff’s motion for a new trial, defendants appeal. The action is one for declaratory relief involving obligations relative to an oil lease, and was tried before the court without a jury. The present action is between the same parties and the pleadings raise the same issues as those involved in the case of Bardeen v. Commander Oil Co., this court’s 2nd civil No. 13273, ante, p. 355 [119 Pac. (2d) 967], which we have this day decided. The instant case was tried with the case just mentioned. Thereafter the trial judge denied a motion for a new trial in action No. 13273, supra. After denying a motion for a new trial in the present ease (action No. 12893), the trial judge became incapacitated and a motion for a new trial in the instant case was heard before a different judge of the superior court, who granted the motion for a new trial on the ground, among others, of the “insufficiency of the evidence to justify the decision of the court. ’ ’

These are the questions necessary for us to determine:

First: Was the order of the trial court erroneous?

Second: Assuming that the order of the trial court was correct, in view of our decision in Bardeen v. Commander Oil Co., 40 Cal. App. (2d) 341 [104 Pac. (2d) 875], which determines some of the issues raised by the pleadings in the present action in favor of the present defendant, should this court reverse the order of the trial court granting a motion for a new trial and order a judgment to be entered in conformity with the facts as determined in Bardeen v. Commander Oil Co., 40 Cal. App. (2d) 341 [104 Pac. (2d) 875] ?

The first question must be answered in the negative. The law is established that, where there is a conflict of evidence upon material issues, which would have sustained a judgment in favor of the moving party, an order granting a motion for a new trial upon the ground of the insufficiency of the evidence to sustain the judgment theretofore entered by the trial court will not be disturbed upon appeal. (Empire Investment Co. v. Mort, 169 Cal. 732, 736 [147 Pac. 960].)

It is likewise settled that the aforesaid rule of law is applicable, even though the motion for a new trial is granted by another judge than the one who presided at the [347]trial of the action (Empire Investment Co. v. Mort, supra). An examination of the record in the instant case discloses substantial evidence to sustain a judgment in favor of plaintiff, should the trial court have chosen to believe it to the exclusion of the evidence offered by defendants. Therefore, the ruling of the trial court on the motion for a new trial will not be disturbed by us.