Perry v. Zaring

YORK, P. J. On June 15, 1945, appellant Perry, as a friend of Kate A. Zaring, an incompetent, filed a petition for the latter’s restoration to capacity. After trial by jury, wherein respondent Hanson H. Zaring, as guardian of the incompetent, resisted said petition, a verdict was returned finding Kate A. Zaring to be a competent person and judgment on the verdict was duly entered restoring said incompetent to capacity and mental competency. Thereafter respondent guardian moved for a new trial on the grounds: “ (1) That the verdict is contrary to the law; (2) That the verdict is contrary to the evidence; (3) That the. verdict is contrary to the law and the evidence.” Said motion was granted by the trial court “on the ground that the evidence is insufficient to support the verdict and judgment entered thereon.”

This appeal is prosecuted by petitioner Perry and the incompetent Paring on the ground that said order is erroneous, because granted on a ground not specified in respondent guardian’s notice of intention to move for a new trial.

Section 657, Code of Civil Procedure, provides that “The verdict may be vacated . . . and a new or further trial granted ... on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: ... 6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law. . . . When a new trial is granted, . . . upon the ground of the insufficiency of the evidence to sustain the verdict or decision, the order shall so specify this in writing and shall be filed with the clerk within ten days after the motion is granted; otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground. ...”

In Dynes v. Bekins Van & Storage Co., 175 Cal. 72, 73 [165 P. 12], where defendant’s motion for a new trial “was based on various grounds, including the ground that the verdict was contrary to the evidence, and, specifically, that there was no evidence of any contract to store the goods in a fireproof warehouse, or of any representations that the same has been or were stored in such warehouse”; it was stated by the court:

[296]“ ‘It is only necessary to discover whether any of the grounds are sufficient, for the rule is well settled that the order granting a new trial will he affirmed if it can be justified on any ground made by the statute the subject of a motion for new trial.’ (Churchills v. Flournoy, 127 Cal. 355, 361 [59 P. 791].) It should be added, of course, that such ground must be properly specified in the notice of intention to move for a new trial and in the specifications of error or insufficiency of the evidence in the statement or bill of exceptions on which the motion is heard. We deem it unnecessary to consider the matter at further length. A perusal of the evidence on the issues above stated shows that it is decidedly and substantially conflicting. Under these circumstances ‘the judge should set aside the verdict whenever he is not satisfied with it on the evidence and his order in that regard will not be disturbed on appeal if the evidence is substantially conflicting.’ (Curtiss v. Starr, 85 Cal. 376, [24 P. 806] ; Condee v. Gyger, 126 Cal. 546, [59 P. 26].)”