Gray

These are appeals from a judgment in favor of plaintiff for five thousand dollars’ damages and from an order denying defendants’ motion for a new trial.

1. Counsel for the respective parties differ as to the character of the case made hy the complaint, counsel for plaintiff claiming that the action is one at law for damages for injury to plaintiff’s business, caused by malicious and oppressive conduct of defendants deliberately intended to injure sueh plaintiff and “drive plaintiff out of the field as a competitor with the defendants, ’ ’ while counsel for defendants claim that the action is one in equity for the abatement of an alleged nuisance, and incidentally for the damage caused thereby. We regard this question as immaterial on these appeals, even if it be conceded that an action for the abatement of a nuisance is under our present constitution an action within the equitable jurisdiction of the court, and to be governed by the principles prevailing in that jurisdiction. (See McCarthy v. Gaston etc. Co., 144 Cal. 542, 547 , [ 78 Pac. 7 ].) The case was tried upon the theory that it was solely an action at law for damages, and the judgment given was one for damages only, no…