Huckaby

Plaintiff sued in ejectment to recover possession of certain mining ground alleged to be included in an unpatented claim known as the “Durable.” The answer denied the allegations of the complaint. The jury returned a verdict in favor of plaintiff for the restitution of the premises. Judgment was entered accordingly and the defendants moved for a new trial on the ground, among others, of “insufficiency of the evidence to justify the verdict.” On the 3d of July, 1918, the court made an order granting the motion, without specifying the ground upon which the same was granted. This appeal is from the order so made. The amendment of section 657 of the Code of Civil Procedure in 1919 (Stats. 1919, p. 141), providing that unless the order granting a new trial shall specify that it is made upon the ground of insufficiency of the evidence to sustain the verdict, it will be presumed on appeal that the order was not based upon that ground, can have no application to this appeal. If there is sufficient evidence, therefore, to support a judgment in favor of defendants the order must be affirmed.

Appellant’s opening brief was filed March 17, 1923. The attorneys for respondents have filed no…