
    [No. 12388.
    Department One.
    September 14, 1889.]
    GEORGE GROSS, Respondent, v. CATHERINE KELLEHER et al., Appellants.
    Appeal—Conditional Order Granting a New Trial—Record upon Appeal — Presumption — Damages upon Affirmance. — When a conditional order is made granting a new trial on motion of the defendant, unless plaintiff forthwith files a waiver of part of the judgment, in which case a new trial is to be denied, and an appeal is taken by the defendant from the order granting a new trial, and particularly from the conditional part thereof, and also from the judgment, and the record on appeal does not show that the waiver was filed by plaintiff, it will be presumed that it was not filed, and that the appeal is from an order granting a new trial; and if no error appears in the record to the prejudice of appellant, the judgment and order appealed from will be affirmed, with damages.
    Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order granting a new trial.
    
      The facts are stated in the opinion of the court.
    
      Moses G. Cobb, for Appellant.
    
      Joseph, Mee, for Respondent.
   Works, J.

This is an appeal from an order granting a new trial to the appellant on her own motion, and from a judgment against her.

The order appealed from is as follows:—■

“ The motion of defendant Catherine Kelleher for a new trial having this day come on to be heard, and the matter having been argued and submitted to the court for decision, and the matter being fully considered, ordered that the same be granted, unless plaintiff forthwith file a waiver of twenty-five ($25) dollars of the money part of the judgment herein. If such waiver be filed, then that the new trial be denied.
“Filed August 5, 1887.”

The notice of appeal was as follows:—

“You will please take notice that the defendant in the above-entitled action hereby appeals to the supreme court of the state of California from the order of said court granting her motion for a new trial, made on the fifth day of August, and more particularly from so much of said order as permits the plaintiff to prevent the said grant of a new trial by the remission of twenty-five dollars damages in the judgment recovered by him; and also from the judgment therein entered in the said superior court on the thirteenth day of June, 1887, in favor of the plaintiff in the said action, and against said defendant, and from the whole thereof.”

There is nothing in the record showing, or tending to show, that the plaintiff ever remitted the amount mentioned in the order. If not, the order was one granting a new trial. We must presume the amount was not remitted, as the notice of appeal was from an order granting a new trial.

This condition of the record renders it unnecessary for us to examine and pass upon the questions attempted to be presented upon the merits, as the judgment appealed from was vacated by the order granting a new trial, but we may say that we have carefully read the appellants’ brief and the transcript, and are satisfied that no error was committed by the court below of which she has any reason to complain. If any error was committed, it was against the respondent in requiring him to remit a part of his judgment or submit to a new trial.

Judgment and order affirmed, with twenty per cent damages.

Fox, J., and Paterson, J., concurred.

Hearing in Bank denied.  