Jones

This action was brought in the superior court of the city and county of San Francisco, and the question involved was whether the plaintiff had a right to maintain a certain sewer across a lot owned by the defendant in that city. The case was tried before the late Judge Hoge, and the findings and judgment were in favor of the defendant. The plaintiff moved for a new trial upon the ground that the findings were not justified by the evidence, but before the motion was heard Judge Hoge died. Afterwards the motion was heard by another judge of the court and granted, and from that order this appeal is prosecuted by the defendant.

It is claimed for appellant that as Judge Hoge presided at the trial his findings upon all the questions of fact should be treated as conclusive.

We do not understand this to be the rule applicable to a case like this. It is true that this court will not review findings when there is a substantial conflict in the evidence, but it has been repeatedly held that upon motion for a new trial it is the duty of the trial court to examine the evidence, even though it be conflicting, and if dissatisfied with the conclusions reached, to grant a new trial. And the rule…