
    [No. 906.
    Decided April 13, 1893.]
    The State of Washington, on the relation of H. L. Tibbals, sr., v. The Superior Court of Jefferson County, State of Washington.
    CERTIORARI —WHEN LIES — GRANTING NEW TRIAL.
    
      Certiorari will not lie to review the action of the superior court in granting a new trial. (Scott, J., dissents.)
    
      Original Application for Certiorari.
    
    
      John Trumbull, and Smith & Felger, for relator.
    
      Carroll & Rohde, for respondent.
   The opinion of the court was delivered by

Dunbar, C. J.

The question presented in this case is: Can the act of a trial court in granting a new trial be reviewed by certiorari. The authorities cited by petitioner throw no light upon the subject. It is contended that the court acted without jurisdiction because the grounds upon which the new trial was granted were not the grounds set out in the petition. But this position is not tenable. The court certainly had jurisdiction to grant a new trial, and if it granted it on illegal grounds it simply committed error. The granting of a new trial is a matter which is generally conceded to be largely discretionary with the trial court, and if this discretion has been abused, and a new trial has been granted outside of the provisions of the law, we see no reason why the error, if properly excepted to, could not be preserved in the record and brought here for review in the event of a new trial resulting against the interests of the petitioner. If it does not so result, of course in theory of law there has been no prejudicial error. In any event we are unable to find any authority for issuing a writ in such a case, and the petition is, therefore, denied.

• Hoyt, Stiles and Anders, JJ., concur.

Scott, J., dissents.  