ON REHEARING. In the opinion heretofore filed importance was attached to the statement of respective counsel that the only matter considered by the judge before whom the motion for new trial was heard and determined was the refusal of Judge Curler to be sworn as a witness.
The record does not show this fact. It is as follows: "The court now renders its decision upon defendant's motion for a new trial of this cause, and directs that a new trial of said cause be granted, for the reason that the defendant was deprived of the testimony of Judge Curler at the former trial, and such testimony may have been material." This is the record, and by it we must be governed.
It should be noticed that the above words do not exclude from consideration any ground upon which the motion was made.
In Oullahan v. Starbuck, 21 Cal. 414, a similar question arose. The court in that case said: "It is stated by appellant's counsel that the only ground upon which the court below based its action in granting a new trial was a supposed error in its refusing to allow a peremptory challenge to a juror after he had been accepted, though not sworn. We do not doubt such was the fact, but the record does not show this, and by its contents we must be governed. * * *"
The question before us is the effect to be given to the terms of the order. Appellants contend that, as the order allowing a new trial was made upon one ground only, it *Page 345 should be construed as overruling the motion upon the other grounds.
To this view there are two answers:
First — The record does not affirmatively show that the order was made upon one ground only, as was erroneously considered in the original opinion.
Second — Such construction would be unjust, for reasons fully stated in the case of Kauffman v. Maier,94 Cal. 276, following, where a similar question arose: "The proposition of the appellant, that this court is limited upon this appeal to a consideration of the grounds specified in the order granting the new trial, is untenable. A party has the right to move for a new trial upon any or all of the grounds permitted by the statute, and if the record on which his motion is based discloses more than one ground for which a new trial should be granted, the court cannot, by stating in its order that the motion is granted upon one ground only, and denied upon the others, deprive the other party of the right to a review by this court of the entire record.
"The action of the court below is limited to granting or refusing a new trial, and, except in those cases in which it is justified in limiting the new trial to one or more designated issues, the effect of an order granting a new trial is to place the cause in the position it held before any trial had been had. Upon an appeal from that order, this court will review the entire record upon which the order was based, and, if there be found any error in the record which would have justified the court in making the order, the order will be affirmed, upon the same principles that an order sustaining a demurrer to a defective complaint will be sustained, even though the ground upon which the trial court sustained it may be held untenable. A motion for a new trial is a proceeding in the nature of a new action, wherein the statement or bill of exceptions corresponds to the complaint, and the specifications of error to a demurrer thereto; and the action of the trial court in sustaining the motion is to be treated on the same principles. If there be any grounds upon which its action can be upheld, the order will be sustained, irrespective of the particular ground given by that court, whether in an opinion or by a statement in the order itself. *Page 346
"A contrary rule might work great injustice. If a new trial is granted, the former decision is set aside, and the party whose motion has prevailed is not `aggrieved,' and has no ground for an appeal. By the order granting the new trial the judgment is vacated, and the cause is in the same condition as when the issues were joined. But if, upon an appeal from that order, the action by this court is limited to a review of merely the ground designated by the lower court, and that ground should be held insufficient, the moving party would be deprived of the new trial, to which the record might show that he is manifestly entitled."
The motion for new trial was made upon several grounds, one of which was insufficiency of the evidence to support the verdict. The evidence was conflicting. In such case the order of the district court will not be disturbed, unless its discretion has been abused, and no abuse has been shown.
It is ordered that the order of the district court allowing defendant a new trial be affirmed. FITZGERALD, J.: I concur. *Page 347