
    HIRAM LOUDERBACK et al., Respondents, v. JOHN DUFFY, Appellant.
    No. 278;
    June 6, 1864.
    New Trial — Death of Judge — Appeal.—Where the Record is not definite in respect to the facts, and the disposition of the motion for a new trial has been made by a judge other than the trial judge, then dead, the court on appeal is not justified in overruling the discretion of the court below.
    "Wallace & Royle for respondents; T. J. Tucker for appellant.
   SANDERSON, C. J.

This is an appeal from an order granting a new trial in an action brought under the statute concerning forcible entry and unlawful detainer. It is impossible to determine from the record whether a new trial ought to have been granted or not. The judge by whom the cause was tried died before the statement on the motion for a new trial was settled, and, the attorneys being unable to agree, his successor was compelled to decide between them without any knowledge of the facts. This circumstance seems to have had some influence with him in granting the new trial.

The principal question argued in this court is as to the admissibility of evidence of a certain writ of habere facias possessionem under which the defendant’s landlord was put in possession of the premises in controversy, and under which the plaintiffs were dispossessed. This writ was admitted in evidence on the part of the defendant under the exception of the plaintiffs. The record does not disclose facts sufficient to enable us to determine whether the writ was properly admitted. When the action in which the writ was issued was commenced does not appear; nor does it appear whether a notice of lis pendens was filed; nor whether the plaintiffs were in possession before or subsequent to the commencement of the action; the only fact which does appear, bearing upon the question of the admissibility of the writ, is that the writ did not run against the plaintiffs by name; but non constat that they did not go into possession, under the defendant in the action, after the suit was commenced, and after notice of lis pendens was filed, in which case they would have been bound by the judgment and the sheriff could have lawfully executed the writ against them.

It being impossible to ascertain from the record what the real merits of the motion are, we would not be justified, in view of the manner in which the statement was prepared and settled, in overruling the discretion of the court below, especially in granting a new trial. Under the peculiar circumstances of this case, the granting or refusing a new trial rested very much in the discretion of the court below.

Order affirmed.

We concur: Rhodes, J.; Currey, J.; Sawyer, J.; Shafter, J.  