Brison

— Upon the former appeal in this case ( 75 Cal. 525 ; 7 Am. St. Rep. 189 ), it was held that the facts alleged in the complaint entitled the plaintiff to the relief sought, as well upon the ground of constructive fraud on the part of the defendant, arising out of the violation of the confidential relations between her and the plaintiff, as upon the ground of the actual fraud alleged, and that the demurrer to the complaint should have been overruled. After the cause had been remanded to the court below, the defendant answered the complaint, denying all the allegations of actual fraud, and alleging that the conveyance to her by the plaintiff was made with the intent to vest her with the absolute title to the property. Upon the trial of the cause, judgment was rendered in favor of the plaintiff, and the defendant’s motion for a new trial having been denied, an appeal has been taken from that order, but no appeal has been taken from the judgment.

1. Upon an appeal from an order denying a new trial/ *327 this court cannot consider the sufficiency of either the complaint or of the findings to support the judgment. “ A new trial is a re-examination of an issue of fact in the same court…