Townley

The firm of Darby, Laydon & Co. entered into a .written contract with the defendant Adams for the construction of a bulkhead upon his property in Oakland harbor. This action (brought by the firm’s assignee) was to recover the sum of $8,534.73, allegéd to be due for extra labor and mate *383 rials furnished in connection with the work. the controversy was given to a jury for determination, and the jury returned its verdict for plaintiff in the amount sued for. Thereupon the court, without motion or application of either party, but upon its own motion, set aside the verdict in the following order: “The court of its own motion orders that the said verdict as rendered be, and the same is hereby; set aside and a new trial ordered, upon the ground, and no other, that the evidence as given does not justify the verdict as rendered, and that said verdict is against the law and the evidence.” From this order plaintiff appeals. His contention is, that under the facts presented by the record the order was in excess of the jurisdiction of the court.

Section 657 of the Code of Civil Procedure provides that “the former verdict or other decision may be vacated and a new trial granted, on the…