concurring:
In the view we take of this case it is unnecessary to consider the question whether or not there is any conflict, as contended by counsel, in our decision as to the manner in which the evidence on the first trial is to be considered by this court, under the provisions of section 8484 of the Code; for whether that evidence be considered as on a demurrer thereto or otherwise, we are of the opinion that it sustained the verdict of the jury, and that the court erred in setting that verdict aside. We concur in the conclusion reached by Judge Cardwell in his opinion that all proceedings in the case subsequent to the first verdict should be set aside and judgment entered thereon, but we do not concur in all that is said in his opinion as to the rule of decision in this court under section 8484 of the Code.
Reversed.