State Industries, Inc. v. Capitol Metals Co.

FOURT, Acting P. J. State Industries, Inc. (hereinafter referred to as “State”) appeals from an order granting a new trial in an action for conversion after the case was tried by the court sitting without a jury. Judgment in favor of State was entered April 4, 1963. Subsequently, by the minute order entered May 8, 1963, the motion of Capitol Metals Co., Inc. (hereinafter referred to as “Capitol”) for a new trial was “granted on the grounds of insufficiency of the evidence and error of law. ’ ’

The chronology of events is as follows:

On July 7, 1958, State filed a complaint for moneys due naming S. C. Redman (hereinafter referred to as “Red-man”) and “Doe I to Doe V inclusive” as defendants. The first cause of action was cast in the form of a common count of moneys had and received. The second cause of action was for conversion of certain steel.

On April 11, 1960, State filed an amendment to complaint (under Code Civ. Proe., § 474), naming Capitol as a defendant in the place and stead of Doe I.

[652]Redman filed Ms answer on April 25, I960. Capitol filed its

answer the same date.

The pretrial conference order was filed January 4, 1963. The issues were set forth therein1 and a joint pretrial statement of the parties was expressly incorporated by reference. After a trial by the court sitting without a jury, findings of fact and conclusions of law were filed April 3, 1963,2 and judgment in favor of State was entered April 4, 1963. Cap[653]itol’s notice of intention to move for new trial was filed April 16,1963.3

The minute order granting Capitol’s motion was entered May 8,1963, and the within appeal follows.

What is stated in the Traub Co. v. Coffee Break Service, Inc., 210 Cal.App.2d 711, 713 [27 Cal.Rptr. 79] is apposite when “insufficiency of the evidence” constitutes a ground for granting a motion for new trial:

“The rule applicable to the scope of review to be exercised by appellate courts should not be confused with the rule applicable to the trial court’s discretion to grant a new trial. So long as there is some substantial evidence to support a judgment, the question of the sufficiency of the evidence cannot be relitigated on appeal; while, on the other hand, the trial court has the power and the duty to grant a new trial whenever it is satisfied that the original findings and judgment were not supported by sufficient evidence. (Condee v. Gyger, 126 Cal. 546 [59 P. 26]; Churchill v. Flournoy, 127 Cal. 355, 362 [59 P. 791].) On appeal from an order granting a new trial, all presumptions favor the order, not the original judgment. (Yarrow v. State of California, 53 Cal.2d 427, 434 [2 Cal.Rptr. 137, 348 P.2d 687].) The reviewing court cannot reverse the order granting a new trial on the grounds of insufficiency of the evidence so long as there is some substantial evidence to support a contrary judgment. (Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 359 [170 P.2d 465].)” (See Prout v. Perkins, 21 Cal. App.2d 343 [69 P.2d 194].)