Mason v. Austin

46 Cal. 385 | Cal. | 1873

By the Court:

The plaintiff sued to recover the money which he had paid to the defendant, under protest, for assessments levied upon outside lands, under Order Number Eight Hundred, of the Board of Supervisors of the City and County of San Francisco, and the Act of the Legislature ratifying such order; and having recovered a verdict for only a small portion of the amount sued for, he moved for a new trial, and the motion was granted, on the ground “ that the verdict is against law, and that the evidence is insufficient to justify the verdict.” The evidence tended to show that a large portion of the lands mentioned in the complaint were lands the title to which did not pass by virtue of the Act of Congress of March 8, 1866, but did vest in the State under the provisions of the Act of Congress of September 28th, 1850, commonly called the Arkansas Act; and from the order granting a new trial on the ground that the evidence was insufficient to sustain the verdict, it will be presumed that the Court was of the opinion that the evidence preponderated against the verdict on that issue. If the evidence thus preponderated, it was the duty of the Court to set aside the verdict. If the lands were of that character, they were not liable to the assessment levied upon them. The question presented here is whether the Court erred in granting the new trial on the grounds specified in the bill of exceptions, but questions as to the sufficiency of the complaint, or of the defenses pleaded by the defendant, do not arise on an appeal from that order.

Order affirmed.