—The above cause was tried by the court without a jury, and upon the findings of fact made by it, judgment was rendered in favor of the plaintiff. The defendant *74 afterwards moved for and obtained an order granting a new trial. From this ordеr the plaintiff has appealed.
In defendant’s notice of motiоn it designated as the grounds upon which the motion would be made,
“
insufficienсy of the evidence to justify the decision,” and “errors of law occurring at the trial.” Specifications of particulars wherein it was claimed that the evidence was insufficient, and of various errors of law upon which the defendant relied, were made in the statement of the case which was afterwards filed, and upon which the motion was heard. Aftеr hearing the motion, the court made the following order: “In this action thе motion for a new trial herein having been heretofore submitted to thе court for consideration and decision, and now the court having fully сonsidered the same, it is ordered by the court that the said motion be and the same is hereby granted.” In the minutes of the court the clerk added, immеdiately after the above order, the words, “(Opinion filed).” On the same dаy the following opinion was filed: “In view of the rule laid down in
Pauly
v. Pauly,
The rule is firmly established that the superior court is not only аuthorized, but that it is its duty, to grant a new trial whenever, in its opinion, the evidencе upon which the former decision was made was insufficient to justify that deсision. Its action in granting a new trial upon this ground is so far a matter within its discretion that, if there is any appreciable conflict in the evidencе, it is not open to review in this court
(Kauffman
v.
Maier,
In the present case, the order, being that “ the motion be and the same is hereby granted,” is unqualified in its terms, and we cannot indulge in cоnjecture as to the grounds upon which it was made. If the court had intendеd to limit the grounds for making the order to the principles of law given in the сases cited in its opinion, it should have expressed this intention in its order. Thеre is nothing in the terms of the order to indicate that it may not have been made upon the consideration that the evidence was insufficient under these cases to establish the aúthority of Hunt. One of the questions controverted at the trial was, whether Hunt, at the time he incurred the liability for which he gave the notes set forth in the complaint, was acting in behalf of the defendant or of another corporation, of which he was president, and it may be that the court, upon a review of the entire evidence in reference thereto, was of the opinion that it had erred.
The order is affirmed.
Garoutte, J., and Van Dyke, J., concurred.
Hearing in Bank denied.
Notes