Opinion
Appeal from the County Court of San Joaquin County.
This was an action of forcible entry and detainer, brought in a Justice's Court in San Joaquin County. In that Court the defendant moved to dismiss, on the ground that plaintiff could not maintain a civil action, and supported the motion with proof that he (plaintiff) had been recently convicted of the crime of perjury, and was then under a sentence of imprisonment therefor for two years in the State Prison.
Plaintiff showed, in opposition, that he had appealed to the Supreme Court from the judgment of conviction, and had been admitted to bail on said appeal, and that he was now at large, and the appeal still pending. The Justice overruled the motion, and plaintiff had judgment for twelve dollars damages, besides costs and restitution, and a fine of twenty dollars was imposed on defendant.
The latter appealed to the County Court, and there renewed the motion to dismiss, which, on the same showing of facts, was granted. Plaintiff moved for a new trial on the ground that the Court had erred in matters of law, to wit: in dismissing the action on the facts shown. After argument, the Court granted the motion and ordered anew trial, from which order the defendant appeals.
COUNSEL:
Brown & Graves, for Appellant.
John B. Hall, for Respondent.
JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. and Norton, J. concurring.
OPINION
CROCKER, Judge
This was an action of forcible entry and detainer, brought in a Justice's Court in San Joaquin County. The plaintiff recovered judgment in the Justice's Court, and the defendants appealed to the County Court, where the action was dismissed; but on motion of the plaintiff a new trial was granted, and the defendant appeals from the order granting the new trial. The judgment in the Justice's Court was only for twelve dollars damages and twenty dollars fine, besides costs.
This Court has repeatedly decided that the power to grant new trials is one of legal discretion, and the abuse of that discretion only will justify an interference with the order. It is only in rare instances and upon very strong grounds that this Court will set aside an order granting a new trial, and this is not a case which calls for the exercise of that power.
In this case it is doubtful whether this Court has jurisdiction of the appeal; but as that point was not argued, we leave it open for future consideration. See Paul v. Silver , 16 Cal. 75.
The order granting the new trial is affirmed, and the cause remanded for further proceedings.