Howell v. Booth

Jenkins, P. J.

1. This court will not control the discretion of a trial judge in granting a first new trial, unless it should appear that the verdict was demanded by the law and the facts. Civil Code (1910), § 6204. .

2. In the instant claim case, a judgment was rendered finding the property not subject, and a new trial was granted to the plaintiff. While the evidence of either the plaintiff or the claimant is not very definite as to the identification of the property claimed and of that levied upon, the proof indicates that the defendant in fi. fa. was in possession of the property at the time of the levy, thus placing the burden of proof upon the claimant; and the evidence would authorize the inference that at least a portion of the property levied upon was purchased by the defendant in fi. fa. after the issuance and recordation of the execution. Accordingly, the judgment of the court below granting a first new trial to the plaintiff in fi. fa. will not be disturbed.

Judgment affirmed.

Stephens and Bell, JJ., concur.