# Gutierrez v. Brinkerhoff

> California Supreme Court · December 28, 1883 · 2 Cal. Unrep. 232

URL: https://www.frixlaw.com/law-library/cases/5453172

## Case

- **Full name:** GUTIERREZ v. BRINKERHOFF
- **Court:** California Supreme Court
- **Decided:** December 28, 1883
- **Citations:** 2 Cal. Unrep. 232; 1 P. 482; 1883 Cal. LEXIS 665
- **Precedential status:** Published
- **Opinion:** Concurrence by McKinstry
- **Judges:** McKee, McKinstry
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5453172

## Opinion text

McKINSTRY, J., Concurring.
I concur in the judgment. The transcript shows a substantial conflict in the evidence bearing upon several of the issues and findings. It has frequently been held here that a motion for a new trial on the ground of the insufficiency of the evidence is addressed to the sound legal discretion of the court below, and that an order granting a new trial on that ground will not be reversed unless it appears there has been manifest abuse of discretion: Pierce v. Schaden, 55 Cal. 406 ; Bronner v. Wetzlar, 55 Cal. 419 ; Phelps v. Union C. M. Co., 39 Cal. 410 ; Hall v. Banning, 33 Cal. 522 . Such manifest abuse of discretion does not appear.
The circumstance that there was a change in the incumbency of the bench, intermediate the trial and the determination of the motion for a new trial, makes no difference in the application of the rule: Altschul v. Doyle, 48 Cal. 435 ; Macy v. Davila, 48 Cal. 646 ; Blum v. Sunol, 11 Pac. C. L. J. 275.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5453172. Public record. Not legal advice.