Rahmel v. Rost

RICHARDS, J., pro tem. This is an appeal from an order granting the plaintiff a new trial. The action was one to recover damages for deceit alleged by the plaintiff to have been practiced upon him by the defendants in an exchange of properties. The findings and judgment of the court upon the trial were in favor of the defendants. The motion for a new trial appears to have been duly made upon all the statutory grounds. The order of the trial court granting said motion was a general order, and hence if sustainable upon any of the grounds stated will be upheld upon appeal. The appellants devote a large amount of space in their opening brief to a review of the evidence in the case, but it is conceded that as to the alleged misrepresentations upon which the- plaintiff principally relied, there was direct conflict of testimony, the plaintiff asserting and the defendants denying that such misrepresentations had been made. Upon such a state of the record .the order granting the motion for a new trial will not be reviewed upon appeal. Counsel for the appellants, however, undertook to argue that the order granting the motion for a new trial was based upon some misconceptions of the trial court as to certain matters occurring at the trial; but the order of the court does not so indicate, and hence must be presumed to have been made upon the ground of the insufficiency of the evidence to justify its former decision. (Ne wman v. Overland Pac. Ry. Co., 132 Cal. 73, [64 Pac. 110]; Pollitz v. Wickersham, 150 Cal. 238, [88 Pac. 911].) The order is affirmed. Sloss, J., and Shaw, J., concurred.