MANUELLA HIGUERRA v. JOSE REYES BERNAL

[No. 3,744.] MANUELLA HIGUERRA v. JOSE REYES BERNAL. New Trial.— The Supreme Court will not reverse an order of the Court below in granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict, if there was a conflict in the testimony. Retaxing Costs and Denying Execution. — If a new trial is granted to the defendant on payment of the plaintiff's costs within twenty days, and there is an error in the bill of costs, the defendant may, within the twenty days, tender the real sum due as costs, and if it is refused, move to re tax the costs after the twenty days expire, and the Court may re tax them, and refuse to let an execution issue. Appeal from the District Court, Third Judicial District, Alameda County. Action for breach of promise of marriage and for seduction. The judgment for the plaintiff was rendered Novemher 8th, 1872. January 23d, 1873, the Court below granted a new trial on condition that the plaintiff pay the defendant’s costs within twenty days. The judgment was for one hundred and ninety-one and sixty-five one hundredths dollars costs. The proper costs were only one hundred and seven dollars and twenty cents. Within the twenty days the defendant tendered the proper costs, which the plaintiff’s attorney refused to receive. After the twenty days expired, the plaintiff, on the 17th of February, 1873, moved the Court to retax the costs at one hundred and seven dollars and twenty cents, and the motion was granted. The plaintiff excepted and moved the Court for an execution, on the ground that the order granting a new trial was not in force, because its terms had not been complied with. The Court denied the motion. The plaintiff appealed from the order granting a new trial and from the order denying the motion for an execution. Richard B. Moyes, for Appellant. Noble Hamilton, for Respondent. [MAJORITY — By the Court:] By the Court: The motion for a new trial was granted upon the ground of the insufficiency of the evidence to justify the verdict. There was a conflict of testimony upon the issues submitted to the jury, and in such case it is settled that this Court will not interfere with the judgment of the Court below. There was no error in retaxing the costs which were allowed to the plaintiff. Order affirmed.