Soto

This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of the defendant having appropriated to its own use property of the plaintiff, consisting of ninety-eight head of cattle. A jury returned a verdict' in favor of the plaintiff and the trial judge granted a motion for a new trial, from which order plaintiff has appealed. The only question to be considered is as to whether, upon the evidence presented in the trial court, the making of the order complained of amounted to an abuse of discretion. [1] The rule is a familiar one and well settled that it is the duty of a trial judge, wherever it appears to him that a verdict is not sustained by the weight of the evidence, to grant a new trial, and that such order will not be disturbed unless it plainly appears that there has been an abuse of discretion. (Drath man v. Cohen et al., 139 Cal. 310 [ 73 Pac. 181 ]; In re Martin, 113 Cal. 479 [ 45 Pac. 813 ]; Weringer v. Rutledge, 180 Cal. 566 [ 182 Pac. 31 ].) A brief consideration of the evidence as the record shows it will demonstrate, we think, without the aid of further authorities, that the order should be affirmed.

[2] Plaintiff was the…