22 Cal. 42 | Cal. | 1863
Lead Opinion
This is an action to recover of the defendants the possession of twenty acres of land in the City and County of San Francisco. The complaint alleges that on a certain day the plaintiff was seized and possessed of the land in question, and that the defendants entered and ousted him. The answer denies the allegations of the complaint, and sets up the Statute of Limitations.
On the trial the plaintiff relied upon the prior possession of one Foley, and others, under whom he claims. The case was tried by a jury and the plaintiff obtained a verdict, and we are asked to review the evidence, which is claimed to have been insufficient to justify the action of the jury. On this point it is only necessary to say that the evidence is of such a character as to preclude interference on our part; it is voluminous and conflicting, and we cannot undertake to say that the jury arrived at an erroneous conclusion.
There is nothing in the point that the Court erred in refusing to strike out the testimony of the witness Shear. His interest, if he had any, appeared during his direct examination, and the motion to strike out was not made until the defendants had cross-examined him. Of course, it was made too late, as the defendants could not, knowing the interest of the witness, take their chances of a cross-examination, and subsequently avail themselves of the objection to get rid of the evidence.
The point as to the testimony of Harkness only goes to the exercise of a discretionary power by the Court, and is not a matter for revision on appeal.
The only additional points relate to the action of the Court in giving and refusing instructions. We are of opinion that the case was fairly submitted to the jury, and that the record discloses no error for which the judgment should be reversed. It is possible that instructions were refused which could properly have been given, and that some of those given are subject to verbal criticism. On the whole, however, we think there is no substantial ground of objection, as the question for the jury was a very sinqple one, and depended entirely upon the weight of evidence.
The judgment is affirmed.
Rehearing
The point in regard to the testimony of Shear is not well taken.
The petition is demed.