Thompson

Defendant had judgment, but the trial court granted plaintiff’s motion for a new trial. From this order the appeal was taken.

The record does not show what evidence was used upon the motion for a new trial, nor upon what ground the court based its order. The notice of motion is not disclosed. In reference to the matter all that the transcript reveals is: “Whereupon, within the time by law prescribed therefor, plaintiff filed with the Clerk of said Court and served upon defendant, notice of her intention to move said Court to vacate said decision and to grant plaintiff a new trial of said action”; and: “The Court this day made an order that plaintiff’s mo tion to vacate and set aside the decision rendered in said action, heretofore argued and submitted, be and the same is hereby granted, to which order the defendant duly excepted. ’ ’

In Skinner v. Horn, 144 Cal. 280 , [ 77 Pac. 905 ], the supreme court, speaking through Mr. Justice Angellotti, said: “The, presumption is that the order granting a new trial was properly made, and, in the absence of a bill of exceptions showing what was used on the motion, unless the record on appeal establishes the contrary, it will be…