
    JOHNSON, Executor, etc., v. HANCOCK and Others.
    No. 9339;
    November 18, 1884.
    4 Pac. 1093.
    Ejectment—New Trial—Judicial Discretion.—Where, in an action of ejectment, it was clearly established that plaintiff had possessory title, and that the withholding by defendants was unlawful, and judgment went" for defendants, it is a proper case for granting a new trial, and the court in doing so does not abuse its discretion.
    APPEAL from the Superior Court of San Diego County.
    O. W. Paine and Work & Titus for appellants; Will M. Smith for respondent.
   By the COURT.

The plaintiff commenced an action of ejectment for certain lands described in the complaint, situate in the county of San Diego. Defendants had judgment, and the court granted plaintiff’s motion for a new trial. This appeal is by defendants from the order of the court below granting the motion for a new trial. The evidence in the case clearly established plaintiff’s title—possessory title, at least—to the land in controversy, and the unlawful withholding thereof by the defendants, the appellants. The occupancy and cultivation of the land, as well as an actual residence thereon, by plaintiff’s testatrix, and the subsequent entry thereon by the defendants, all affirmatively appear in the evidence. It was with license, too, of the plaintiff, and under a full recognition of his right to the possession, that the defendants made the first entry upon the premises in controversy, and, after having surrendered the possession thereof, they made a second entry, which was without license, and wrongful, for the avowed purpose of holding the possession until a certain claim or money demand made by Hancock’s daughter was satisfied.,

We think it was a proper case for a new trial, and there was no abuse of discretion in granting the same. This court will not presume error: Thompson v. Monrow, 2 Cal. 99, 56 Am. Dec. 318.

Order affirmed.  