Leach

The action was for damages alleged to have'been caused by defendant’s cattle to plaintiff’s fruit trees and crops and the jury rendered a verdict in her favor for $1,250. A motion for a new trial was made by defendant on the grounds of newly discovered evidence, and that the verdict was excessive, appearing to have been given under the influence of passion or prejudice, and the motion was granted by the trial judge in the following language: “Said motion having heretofore been argued and submitted for decision; now, at this time the court having duly considered the law and the evidence and being fully advised of its opinion therein, doth order that said motion for a new trial be and is hereby granted.”

The appeal is by' the plaintiff from said order.

Plaintiff owned a tract of land of 14.84 acres, ten of which she claimed was under cultivation. This tract was fenced and was surrounded by a larger tract used as a cattle range, which was rented by defendant. It is claimed by plaintiff that the. damage was caused between May 20, 1917, and June 10th of that year. Defendant contends that he took his cattle away from this pasture on May 20', 1917, and thát they were not in that…