Gutierrez

I concur in the judgment. The transcript shows a substantial conflict in the evidence bearing upon several of the issues and findings. It has frequently been held here that a motion for a new trial on the ground of the insufficiency of the evidence is addressed to the sound legal discretion of the court below, and that an order granting a new trial on that ground will not be reversed unless it appears there has been manifest abuse of discretion: Pierce v. Schaden, 55 Cal. 406 ; Bronner v. Wetzlar, 55 Cal. 419 ; Phelps v. Union C. M. Co., 39 Cal. 410 ; Hall v. Banning, 33 Cal. 522 . Such manifest abuse of discretion does not appear.

The circumstance that there was a change in the incumbency of the bench, intermediate the trial and the determination of the motion for a new trial, makes no difference in the application of the rule: Altschul v. Doyle, 48 Cal. 435 ; Macy v. Davila, 48 Cal. 646 ; Blum v. Sunol, 11 Pac. C. L. J. 275.

The case in hand arises ont of an action which was brought by the plaintiff, as widow and sole devisee of Octaviano Gutierrez, deceased, to obtain a decree annulling and setting aside certain documents affecting a tract of land in Santa Barbara county, known as the rancho La Laguna, upon the grounds that the same were obtained by fraud and without consideration. Upon a trial of the issues raised by the pleadings, decision and judgment were rendered in favor of the plaintiff. Within statutory time, defendants moved for ' a new trial upon a statement of the case, settled and certified by the judge who heard and decided the case, but, before the motion came on to be heard, his term of office ended, and the motion was argued and submitted upon the statement to his successor in office, who ordered the judgment vacated and the case to be retried. From that order the plaintiff has appealed ; and it is contended that the judge of the court below not only abused his discretion in granting a .new trial, but committed error prejudicial to the rights of the plaintiff.

The statement of the case, upon which the order was made, shows that Gutierrez claimed the Laguna ranch under two inchoate…