Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-08-15
SUPREME COURT DECISION.

The Reno Mill 4 Lumber Co.,
Appellant.
w. J.. WesterfieId,
Respondent.
Appeai from the District Court of the |
State of Nevada, in and for Wash |
oe County,. Hon. 9. E. Curler, |
Order granting motion
for New Trial in said Court Hon
G. r. Talbot, Judge.
A. e. Cheney
For Respondent.
Upon Petition for Rehearing.
BY seIknap, J.
In the opinion heretofore filed i'm
portance was attached to the state
ment of respective counsel that the
only matter considered by the judge
before whom the motion or new trial
was heard and determined was the
refusal of Judge Curler to be sworn as
witness. The record does not show
this fact. 1t is as follows: The
Court now renders it's decision upon
defendants motion for new trial of
this cause and directs that new trial
of said cause be granted for the rea-
son that the defendant was deprived
OF the testimony OF Judge Curler at
the former trial, and such testimony
may have been material. This is the
record and by it we must be govern
ed. 1t should be noticed that the a
bove words do not exclude from con-
sideraton any ground upon which the
motion was made.
In Oultahan V. Starbuck, II Cal.
Ala similar question arose. me
court in that case, said: 1t is stat
ed by appellants counsel that the on
ly ground upon which the court below
based its action in granting new
trial was u supposed error in its re
fusing to allow a peremptOry chal-
lenge to a juror after he had been
accepted, though not sworn. We do
not doubt such was the fact, but the
record does not show this, and by its
contents we must be governed -
The question before us is the effect
to be given to the terms of the order
Appellants contend that as the order
allowing a new trial was made upoI
one ground only, it should be con
strued as cverruling the motion upoI
the other grounds.
To this view there are two answers
1st The record does not affrma
lively show that the order was mad
upon one ground only. as was enron
eously considered in the original OF
iniOn.
I'd Such construction would be un
Just for reasons fully stated in tn
case of Kaufman v Maier "a Cal, pc
following where a similar question a
rose.
The proposition of the appellant
that this court is limited upon this al
peal to consideration OF the ground
specified in the order granting tn
new trial. is untenable. A party ha
the right to move for new trial III
on any or all of the grounds permitte
by the statute. and if the record o.
which his motion is based disclose
more than one ground for which neS
trial should be granted the court car
not. by stating in its order that tn
motion is granted upon one ground or
~ and denied upon the others, dc
prive the other party of the right t
review by this court of the entir
record The action of the court be
low is limited to granting or retuSln
new trial and except iii those case
in which it is justified in limiting Il.
in which * is justified III limiting til
sues, the effect of an order grant,n
new trial is to place the cause
the position it held before any tri;
had been had. Upon an appeal frol
that order this court will review tt
entire record upon which the ordt
was based. and ii there be found al
error in the record which would ha!
justified the court in making the O
der the order will be affirmed. upO
the same principles that an Ordt
sustaining demurrer to a defectiI
complaint viii De sustained, eve
though the ground upon which II
trial court sustained it may be he
untenable A motion for hew tri
is proceeding in the nature OF
new action wherein the statement
bill of exceptions corresponds to Il
complaint and the specifications
error TO a demurrer thereto. and Il
action of the trial court IN sustainI
the motion is to be treated on tt
same principles. If there be al
grounds upon which it's action can
upheld, the order will be sustained,
respective OF the particular groul
given by that court. whether in an
piniOn or by a statement in the ord
itself.
"A contrary rule might work gre
injustice. Ii a new trial is granite
the former decision is set aside al
the party whose motion has prevails
is not 'aggrieved. and has no grOul
for an appeal. By the order grantil
the new trial the judgment is yacat
and the cause is in the same cCn'
ton as when the issues were jOine
But il upon an appeal from that
der The action by this court is linn
ed to review CT merely the grOu
designated by the lover cour;. a.
that ground should be held insu tficie
the moving party would be depriv
of the new trial to which the recO
might show tina: he is nanifestly
titled
The motion for new trial was ma
upon several grounds. one OF Wi
was insufficiency of the evidence
support the verdict.
The evidence was conflicting.