BARBARA M. HOOK, Appellant, v. JAMES A. HALL, Respondent

[No. 8507. In Bank November 19,1885.] BARBARA M. HOOK, Appellant, v. JAMES A. HALL, Respondent. Practice — New Trial — Appeal — Record.— The notice of intention constitutes no part of the record on appeal from an order granting or refusing a new trial. Id. — Insufficiency of the Evidence — Presumption.—■ Where a new trial has been granted in an action tried by a jury, it will be presumed in favor of the action of the court below that one of the grounds of the motion was the insufficiency of the evidence to sustain the verdict; and if there is a substantial conflict in the evidence, the order of the court will be affirmed. Id.— Time of Filing Notice. — The statement of the case on motion for a new trial contained, immediately preceding the judge’s certificate of settlement of the statement, a recital to the effect that the plaintiff in submitting amendments to the defendant’s proposed statement expressly reserved the right to object to the motion, on the ground that the notice of intention was not served within the statutory time. Held, that the recital amounted to nothing in the absence of a proper showing that the notice was not served in time. Appeal from an order of the Superior Court of the county of Monterey granting a new trial. • This was an action to recover damages for seduction. The remaining facts sufficiently appear in the opinion of the court. W. S. Dodge, and H. V. Morehouse, for Appellant. A. S. Kittredge, Julius Lee, A. L. Hart, and S. Solon Holl, for Respondent. [MAJORITY — McKinstry, J.] McKinstry, J. — The notice of intention to move for a new trial constitutes no part of the judgment roll or of the record to be furnished to this court on appeal from an order granting or denying a new trial. (Code Civ. Proc., secs. 661, 952.) In support of the action of the court below, it will be presumed that the motion for new trial was made on the ground (amongst others) that the verdict was not justified by the evidence; and as there was a substantial conflict in the evidence, the order must be affirmed here in accordance with the settled rule. In the statement of the case on motion for new trial, immediately preceding the judge's certificate of the settlement of the statement, is the recital:— “The plaintiff in filing and submitting amendments to defendant’s statement on motion for new trial herein specially reserves the right, and does not waive any rights that she may have to object and except to the hearing of the said defendant’s motion for new trial on the ground that the notice of said motion was not filed with the clerk of said Superior Court within the statutory time prescribed by section 659 of the Code of Civil Procedure of the state of California.” This portion of the statement cannot be treated as in the nature of a bill of exceptions. The facts are not set out, and as the notice of intention constitutes no part of the record, we are not informed but that the motion was filed within the time prescribed by the code. Order affirmed. Thornton, J., Ross, J., and McKee, J., concurred.