Cappe v. Brizzolara

Cope, J. delivered the opinion of the Court —Field, C. J. concurring. This is an appeal from an order setting aside the report of a referee and granting a new trial. The order was based upon the insufficiency of the evidence to justify the decision-; and as there was some conflict of testimony, we do not see upon what principle we could properly interfere. There is no doubt that it was competent for the Court to grant a new trial on that ground; and its legal discretion in that respect was not affected by the fact that the case was tried before a referee. The provisions of the Practice Act relating to new trials are general in their terms, and vest in the Courts the same power, in cases tried by a referee, as in cases tried by the Court itself, or by a jury. Every case is placed upon the same footing; and the grounds upon which a new trial may be granted are the same in all cases, irrespective of the manner in which the case was originally tried. The doctrine laid down in Tyson v. Wells (2 Cal. 122) is in direct repugnance to the statute, and cannot be maintained. Order affirmed.