Kendall v. Kolb

THE COURT. An appeal from an order granting a new trial. The above action was brought by M. G. Kendall against Philip Kolb to recover upon two promissory notes. The latter filed a cross-complaint against Kendall, Grant 0. Harde, Elizabeth M. Harde and A. B. Hall, alleging that the execution of the notes was induced by fraud, and seeking to set aside the transaction of which they formed a part. Upon the trial of the action upon the cross-complaint a judgment of nonsuit was granted as to Kendall, but judgment upon the verdict of a jury was entered against the other cross-defendants. The latter moved for a new trial, which *582 was granted, and Kolb, the cross-complainant, has appealed from the order. i The record, however, which was prepared under the provisions of sections 953a and 953c of the Code of Civil Procedure, contains no copy of the order granting the motion, as required by the code. (Merritt v. Los Angeles, 162 Cal. 47 [120 Pac. 1064].) Appellant avers, however, that the . grounds for the motion were the insufficiency of the evidence to justify the verdict and that the verdict was against law; and that'since the record does not affirmatively show the order granting the new trial to have been based upon the insufficiency of the evidence it will be presumed that the order was not upon that ground, and the court is thus precluded from considering that question. As to this it will be sufficient to say that the record discloses none of the proceedings in‘this matter except the notice of appeal from the order. An appellate court will not review an order disposing of a motion for a new trial if the record is insufficient (2 Cal. Jur., Appeal and Error, see. 403, p. 700), as it is the duty of an appellant to show error; and unless the record establishes the contrary it will be presumed that the order was properly made. (Skinner v. Horn, 144 Cal. 278 [77 Pac. 904].) For the above reasons the order is affirmed.