Preluzsky

The plaintiff brought this action against Joseph Bittigstein and C. H. Phillips to recover damages for the malicious prosecution of a criminal action against this plaintiff. The action was tried before a jury, which rendered a verdict in favor of the plaintiff and against both defendants. Judgment was entered in accordance with the verdict. Thereafter defendant Bittigstein alone moved for a new trial. An order having been entered granting that motion, plaintiff has appealed therefrom.

[1] Counsel for appellant first suggest that since the defendant Phillips did not move for a new trial, and the judgment against him had become final, there is no authority of law for an order granting a separate new trial of the action as against the other defendant. There is no merit in this contention. (Fowden v. Pacific Coast Steamship Co., 149 Cal. 151 , [ 86 Pac. 178 ].)

Next it is contended that the uncontradicted facts so completely established plaintiff’s cause of action against Rittigstein that the court has abused its discretion in granting to him a new trial. But in fact the evidence is not thus clear and uncontradicted. There is in the record evidence tending to show that both…