Opinion
Department Two
APPEAL from an order of the Superior Court of Orange County granting a new trial. J. W. Towner, Trial Judge. J. W. Ballard, Judge granting the new trial.
COUNSEL:
Dillon & Dunning, for Appellant.
Max Loewenthal, for Respondents.
JUDGES: McFarland, J. Henshaw, J., and Temple, J., concurred.
OPINION
McFARLAND, Judge
This is an appeal by plaintiff from an order granting a new trial, made on motion of defendants.
The action was brought by the appellant, as assignee of Mrs. E. M. Sprague, an insolvent debtor, to recover certain goods alleged to have been sold by the insolvent to the respondents for the purpose of hindering and delaying her creditors, etc. The court below, in the first instance, rendered a judgment for the plaintiff, and upon defendants' motion for a new trial the same was granted by the court while a superior judge other than the one who originally tried the case was presiding. The motion for a new trial was made upon various grounds, and among others that the evidence was insufficient to [53 P. 905] support certain findings of the court; and it incidentally appears from the opinion of the judge of the court below who granted the motion, which opinion appears in the brief of the respondent, that the motion was granted mainly upon the ground that the evidence was insufficient to justify the seventh finding that, at the time of the sale, the defendants had reasonable cause to believe that the said Sprague was insolvent, and reasonable cause to believe that the transfer was made with a view to preventing her property from coming to her assignee in insolvency, etc. It is the province of the trial judge, upon motion for a new trial, to inquire into the sufficiency of the evidence upon which a verdict or finding was found, and it is his duty to grant a new trial when, in his judgment, the evidence was insufficient to support the decision; and his power and duty in the premises is not affected by the fact that the original trial was not had before him. And when there is an appeal here from an order granting a new trial, upon such grounds, the question presents the same aspect as that which would be presented upon an appeal from the original judgment. In either case the ruling of the trial court will not be disturbed here, if there was a fair and substantial conflict of evidence on the issue involved. In Jones v. Sanders , 103 Cal. 678, the decision has been made by one judge, and a motion for a new trial upon the ground that the findings were not justified by the evidence had been granted by another. And it was there claimed that the findings of the first judge should be treated as conclusive. But this court said: "We do not understand this to be the rule applicable to a case like this. It is true that this court will not review findings where there is a substantial conflict in the evidence, but it has been repeatedly held that upon motion for a new trial it is the duty of the trial court to examine the evidence, even though it be conflicting, and if dissatisfied with the conclusion reached, to grant a new trial. And the rule is the same whether the motion is heard by the judge who tried the case, or by some other judge, whose only knowledge of the facts is obtained from the record." (Cases cited.) In the case at bar there is certainly a substantial conflict of evidence as to the point above cited, on which the judge who granted the new trial mainly based his decision. Counsel for appellant very vigorously and strongly argues that the evidence was sufficient to support the findings; but it cannot be said that there was no substantial evidence against the correctness of that finding. It is sufficient to point out, for instance, that the defendants themselves positively swore that they had no knowledge that there was any intent upon the part of the insolvent to hinder her creditors by making the sale, or that they knew of her insolvency, and the insolvent herself testifies to the same thing. The fact that there was sold at the time all of the small stock of goods which the insolvent had was undoubtedly a fact tending to show to the buyers that there was something suspicious about the sale; but, on the other hand, it was shown that these goods had been continuously offered for sale for three months before the occasion on which they were sold; that the insolvent had offered them for sale during that time to the respondents, who had made a standing offer of a certain amount of money for them, and that they had been offered to others, preceding that time, for sale. These are some of the facts which appeared in the case; and under these circumstances we cannot certainly say that there was so little evidence in favor of the decision of the court below as to make it apparent that there was a gross abuse of discretion.
The order appealed from is affirmed.