KELLOGG v. COLGAN

KELLOGG v. COLGAN. No. 12,895; March 25, 1890. 23 Pac. 526. Appeal.—Where the Evidence is Conflicting, an order granting a new trial will not he disturbed on appeal. APPEAL from Superior Court, Sonoma County; John G. Pressley, Judge. S. K. Dougherty, Albert G. Burnett and R F. Crawford for appellant; E. S. Lippitt for respondent. [MAJORITY — SHARPSTEIN, J.] SHARPSTEIN, J. This is an appeal from an order granting plaintiff a new trial in an action for the conversion, by the defendant, of a mare alleged to belong to plaintiff. The answer of the defendant denies all the allegations of the complaint, and for a further defense alleges that the mare was taken by him as sheriff of Sonoma county upon an execution against one Merchant, in whose possession the mare then was. The verdict of the jury was m favor of the defendant. Plaintiff moved, upon a statement of the case, for a new trial, which was granted, and, as before stated, this appeal is from that order. We cannot disturb the order. The evidence is conflicting Order affirmed. We concur: McFarland, J. ¡ Thornton, J.