De La Riva v. Berreyesa

2 Cal. 195 | Cal. | 1852

Chief Justice Murray

delivered the opinion of the Court. It is difficult to say on what precise ground this case should be sent back as the record is one tissue of errors, between which it is hard for the Court to make a choice. The case was tried by three referees, who returned the testimony and rulings; which are now before this Court in the form of an agreed case. It appears that after the case was submitted, the referees allowed the plaintiff to introduce an amended complaint, and compelled the defendant to file an amended answer. It needs no argument to prove that referees have no such power, and that when an issue is made up and submitted to them, they must pass upon that issue, and cannot change it. It appears, also, that testimony, though objected to, was admitted to establish a demand for the price of wheat which was barred by the statute of limitations. The record discloses much hearsay and irrelevant testimony, which should have been excluded. In fact, so many errors are presented for correction, that it would be a gross abuse of power for this Court to affirm the judgment. Justice to the defendant requires a new trial.

Ordered accordingly.

On a subsequent day of the term, the Court, on motion, ordered that the execution and sheriff’s sales on the judgment be set aside.