Obrázky stránek
PDF
ePub

1. The District Courts cannot grant a new trial or interfere in any way with their judgments or decrees, in any material part, after the adjournment of the term in which they are rendered. Robb v. Robb, 6 Cal. 21.

2. Where a judgment was entered in May, and a new trial granted in September following, it was held, that after the expiration of a term of the District Court, no power remains in it to set aside a judgment or grant a new trial. Baldwin v. Kramer, 2 Cal. 582.

3. The fact that instructions given by the Court are lost or mislaid before a motion for new trial is heard, is no ground to suspend the hearing of the motion or for a new trial. Visher v. Webster, 13 Cal. 58.

4. The Judge below is presumed to know what instructions he gave the jury, and if those written are out of the way, he may resort to other evidence or his own memory. Id.

5. Pending a motion for new trial, taken under advisement for decision in vacation by consent of parties, another term of the Court intervenes, when, upon some incidental motion, the cause was continued and the Court adjourned : İleld, that continnance was only a continuance of the motion for new trial, and did not affect the power of the Court to act on the motion at its convenience. Hutchinson v. Bours, 13 Cal. 50.

6. A party cannot appeal from an order overruling a motion for new trial, when he fails to prosecute his motion before the District Court, especially when the case involved complicated facts, and was not tried by the Judge but by a referee, by whom the alleged errors were committed. Mahoney v. Wilson, 15 Čal. 42.

7. A failure to prosecute a motion for a new trial when it comes up for argument, operates as an abandonment of the motion, and the order made, denying the motion for such failure to appear, is not the subject of review on appeal. Frank v. Doane and Green v. Doane, 15 Cal. 302.

CHAPTER VIII.The manner of giving and entering judgment.

Sec. 197. Judgment to be entered in twenty-four hours, etc.

198. Case may be brought before the Court for argument. 199. When counter claim established exceeds plaintiff's

demand. 200. In replevin, judgment to be in the alternative, and

with damages.
201. Judgment book to be kept by the Clerk.
202. If a party die after verdict, judgment may be entered,

but not to be a lien.
203. Judgment roll, what to constitute.

[ocr errors]

to by counsel, nor settled by the Judge trying the case, has not sufficient authentication to constitute any portion of the record which this Court can notice. Doyle v. Seawall, 12 Cal. 425, Paige v. O'Veal, 12 Id. 492.

25. The certificate of a Judge is a sufficient anthentication of a statement; and where a party does not think proper to file amendments, or the Judge to correct the statement, the certificate of that fact by the Judge is all that is necessary. Redman v. Gulnac, 5 Cal. 148.

26. If the statement filed in support of a motion for a new trial is not settled by the Judge, it cannot be therefore interred that it was agreed to. Such statement must either be agreed to, or it must be settled by the Judge, and one of these conditions must be shown affirmatively. In the absence of both, such statement will be rejected. Sinn v. Twist, 3 Cal. 89.

27. It is no objection that the statement does not affirmatively show that the settlement was upon proper notice, or in the presence of both parties. In the absence of evidence to the contrary, the presumption of law is in favor of the regularity of all official acts. Battersby v. 'Abbott, 9 Cal. 568.

28. Statement, authentication of, may be waived.- Where a party appears and argues a motion for a new trial, he cannot afterwards object that the statement was not agreed to by him, and that it was not settled by the Judge. Dickinson v. Van Horn, 9 Cal. 207.

29. When it appears from the bill of exceptions, signed by the Judges, that the motion for new trial was heard on statement, counter statement and affidavits, it cannot be objected that the statement was not settled. Williams v. Gregory, 9 Cal. 76.

30. A statement on motion for new trial, signed by the Judge and appearing, from the minutes of the Court, to have been used on the hearing of the motion, is sutficiently authenticated. The statute points out no mode of authentication, and any satisfactory evidence in the record, in some legitimate and proper form, that the statement has been examined and approved by the Judge, is sufficient. Kidd v. Laird, 15 Cal. 161.

31. The Courts should look at the substance of the contents of the statement, and disregard its imperfections in form. Ringgold > Haven, 1 Cal. 113.

32. Evidence on hearing of motion for new trial.-A stipulation to the effect that a statement may be used on the motion for new trial in this cause, and also on the appeal to the Supreme Court,” includes an appeal from the judgment, as well as an appeal upon the decision for the motiorfor a new trial. Hastings v. Halleck, 13 Cal. 207.

33. A deposition of one of the defendants, introduced by plaintiff on trial, may be introduced by defendants in a new trial. Turner v. McIlhanty, 8 Cal. 579.

34. Motion for new trial may be abandoned.—Plairitiff recovered judgment, and defendants gave notice of their intention to move for a new trial, and filed a statement of the grounds. Plaintiff filed a counter statement, but afterwards, at a meeting of the parties before the Judge at Chambers to settle the statement, informed the Judge and defendants that the statement need not be settled, as he would consent to a new trial; whereupon, defendunts gave notice of a motion to withdraw their motion or proceedings for new vrial. Refused, and a new trial granted: Held, that the Court erred; that the defaudants had a right to move or not to move for a new trial upon the notice given, ånd- if they chose to abandon their proceedings, whether before or after the motion for new trial was made, they had the right so to do.

[ocr errors]

Stmiell v

in 'n

Amendment to Sec. 196.-Passed April 20th, 1863.

[Takes effect sixty days after passage.] § 196. The application for a new trial shall be made at the earliest period practicable after filing the affidavit or statement, and the Court or Judge granting or refusing a new trial shall state in writing the grounds upon which the same is granted or refused.

1. The District Courts cannot grant a new trial or interfere in any way with their judgments or decrees, in any material part, after the adjournment of the term in which they are rendered. Robb v. Robb, 6 Cal. 21.

2. Where a judgment was entered in May, and a new trial granted in September following, it was held, that after the expiration of a term of the District Court, no power remains in it to set aside a judgment or grant a new trial. Baldwin v. Kramer, 2 Cal. 582.

3. The fact that instructions given by the Court are lost or mislaid before a motion for new trial is heard, is no ground to suspend the hearing of the motion or for a new trial. Visher v. Webster, 13 Cal. 58.

4. The Judge below is presumed to know what instructions he gave the jury, and if those written are out of the way, he may resort to other evidence or his own memory. Id.

5. Pending a motion for new trial, taken under advisement for decision in vacation by consent of parties, another term of the Court intervenes, when, upon some incidental motion, the cause was continued and the Court adjourned : Held, that continuance was only a continuance of the motion for new trial, and did not affect the power of the Court to act on the motion at its convenience. Hutchinson v. Bours, 13 Cal. 50.

6. A party cannot appeal from an order overruling a motion for new trial, when he fails to prosecute his motion before the District Court, especially when the case involved complicated facts, and was not tried by the Judge but by a referee, by whom the alleged errors were committed. Mahoney v. Wilson, 15 Čal. 42.

7. A failure to prosecute a motion for a new trial when it comes up for argument, operates as an abandonment of the motion, and the order made, denying the motion for such failure to appear, is not the subject of review on appeal. Frank v. Doane and Green v. Doane, 15 Cal. 302.

CHAPTER VIII.—The manner of giving and entering judgment.

Sec. 197. Judgment to be entered in twenty-four hours, etc.

198. Case may be brought before the Court for argument. 199. When counter claim established exceeds plaintiff's

demand. 200. In replevin, judgment to be in the alternative, and

with damages. 201. Judgment book to be kept by the Clerk. 202. If a party die after verdict, judgment may be entered,

but not to be a lien.
203. Judgment roll, what to constitute.
204. Judgment lien, when it begins and when it expires.
205. Docket, how kept, and what to contain.
206. Docket to be open for inspection without charge.
207. Transcript to be filed in any county, and judgment

to become a lien there.
208. Satisfaction of a judgment, how made.

§ 197. Judgment to be entered in twenty-four hours, etc.

When trial by jury has been had, judgment shall be entered by the Clerk, in conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the Court order the case to be reserved for argument, or further consideration, or grant & stay of proceedings.

1. A Court may at any time render or amend a judgment nunc pro tunc, where the record discloses that it is incorrectly given as the judgment of the Court. Mor. rison v. Dapman, 3 Cal. 255.

2. A judgment cannot be impeached collaterally because entered prematurely. The remedy is by a direct proceeding in the action. Alderson v. Bell, 9 Cal. 321.

3. The act of the Clerk in entering the judgment is a mere ministerial act. McMillan v. Richards, 12 Cal. 468.

4. Upon the coming in of a verdict, in a trial by jury, it is the duty of the Clerk, unless a different direction is given by the Court, to enter a judgment in conformity with the verdict. Morrison v. New York f. New Haven Å. Ř. Co., 32 Barb. 568.

§ 198. Case may be brought before the Court for argument.

[1854.] When the case is reserved for argument or further consideration, as mentioned in the last section, it may be brought by either party before the Court for argument.

1. When the statute speaks of notice of motion, it means written notice, or notice in open Court of which a minute is made by the Court. Borland v. Thornton, 12 Cal. 448.

$ 199. When counter claim established exceeds plaintiff's demand.

If a counter claim, established at the trial, exceed the plaintiff's demand, so established, judgment for the defendant shall be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment shall be given accordingly.

N. Y. Code, \ 263.

$ 200. In replevin, judgment to be in the alternative, and with damages.

In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or the value thereof in case a delivery cannot be had, and damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.

N. Y. Code, \ 277.

1. In an action to recover the possession of personal property, with damages for its detention, the judgment may be for more than the value as alleged in the complaint, if it be within the ad damnum of the writ. The value of the property is only one predicate of the recovery. Coghill v. Boring, 15 Cal. 218.

2. The rule is, that when property converted has a fixed value, the measure of damages is that value with legal interest from the time of its conversion; when the value is fluctuating, the plaintiff may recover the highest value at the time of its conversion, or at any time afterwards. Douglass v. Craft, 9 Cal. 563; Dorsey v. Manlove, 14 Id. 555.

3. The damages, when the property has been delivered, is the legal interest on the value thereof during the detention. Nickerson v. Chatterton, 7 Cal. 568; Douglass v. Craft, 9 Id. 562.

4. This judgment must be in the alternative, or the bond is not liable. Chambers v. Waters, 7 Cal. 390; Nickerson v. Chatterton, 7 Id. 568.

5. If the plaintiff takes the property, the defendant must claim its return in his answer, to enable the Court to give the judgment in the alternative form. Gould v. Scannell, 13 Cal. 430.

$ 201. Judgment book to be kept by the Clerk.

The Clerk shall keep, among the records of the Court, a book for the entry of judgments, to be called the “ Judgment Book,” in which each judgment shall be entered, and shall specify clearly the relief granted, or other determination of the action. N. Y. Code, $ 280.

$ 202. If a party die after verdict, judgment may be entered, but not to be a lien.

« PředchozíPokračovat »