Opinion
Civ. No. 254.
November 21, 1906.
APPEAL from an order of the Superior Court of Humboldt County granting a new trial. E. W. Wilson, Judge.
The facts are stated in the opinion of the court.
J. F. Quinn, and L. F. Puter, for Appellant.
Gillett Cutler, for Respondents.
Ejectment. Judgment was entered in favor of the plaintiff, and the court, upon timely motion, made an order granting a new trial, from which order plaintiff appeals. The motion for a new trial was heard upon specified errors of law occurring during the course of the trial, and numerous specifications of particulars in which the evidence was insufficient to support the verdict. The order granting a new trial reads as follows: "The court at this time filed an opinion herein in pursuance of which it is ordered that defendants' motion for a new trial herein be, and the same is hereby, granted." The lower court in the opinion referred to holds that the complaint stated no cause of action, and this was the only reason advanced therein for granting the motion. Basing their contention on the reference to the opinion found in the order, the attorneys for appellant argue that the opinion must be construed as part of the order, constituting a limitation of the grounds upon which the order was made. We do not think this contention can be sustained. The judge did not sign the order, and the entry in the minutes was the mere ministerial act of the clerk, who certainly had no power to limit the order to particular grounds. But even if this were otherwise, "The opinion of the judge in making the order is not a part of the order itself, but is merely his reason for making the order, and is not subject to judicial review." ( People v. Flood, 102 Cal. 331, [36 P. 663].) Moreover, the opinion of the court although printed in the transcript, is no part of the record on appeal, and hence it cannot be considered by this court in any manner or for any purpose. (Code Civ. Proc., secs. 661, 952; Spelling on New Trial, etc., sec. 693; Chabot v. Tucker, 39 Cal. 434; Davey v. Southern Pacific R. R., 116 Cal. 329, [48 P. 117].)
If, however, it be granted that the court below confined the reason for granting the motion to the specific and erroneous ground mentioned in the opinion, reversal would not follow unless it appeared from the record before us that the order was not supported by grounds enumerated in the motion. ( Kaufman v. Maier, 94 Cal. 269, [29 P. 481]; Newman v. Lansing, 141 Cal. 175, [ 74 P. 761]; Davey v. Southern Pacific R. R. Co., 116 Cal. 330, [48 P. 117].) An appellant is charged with the duty of showing error affirmatively, and there is nothing in the record before us to show that the order assailed was not made on sufficient grounds enumerated in the motion.
Every intendment and presumption aids the action of the trial court, and applying this salutary rule the order appealed from is affirmed.
Buckles, J., and Chipman, P. J., concurred.