76 P. 714 | Cal. | 1904
This action was brought to recover possession of thirteen cows, two yearlings, and three calves, or the value thereof, in case a delivery cannot be had, with damages. The case was tried with a jury, and at the close of the testimony the case was submitted and the jury returned a verdict for defendants. Thereupon the court, in the presence of the jury, on the twenty-third day of March, 1901, on its own motion, made an order vacating and setting aside the verdict, and on the twenty-fifth day of March, 1901, made an order setting the case down for retrial on the thirtieth day of April, 1901. The case comes here on a bill of exceptions for the purpose of reviewing the action of the court below in vacating said verdict.
The trial court is authorized by section
There is no claim made that the verdict was rendered under the influence of passion or prejudice. Evidently there might arise cases in which the jury plainly disobeyed a positive instruction of the court as to certain issues, as to the amount which could be allowed to a plaintiff or a defendant, *28
or as to a positive direction to find a certain way upon some issue or other matter; but this case presents no such feature. If the jury were properly instructed as to the law in regard to every theory of the case claimed by either plaintiff or defendant, and their verdict was the result of deliberation, such verdict was not a plain disregard of the instructions, although the judge may have thought the verdict was wrong. In almost any case the judge might think the jury disregarded his instructions if the verdict did not comply with his own view. He might instruct fully as to the credibility of a witness, and the rules of law to be applied in weighing the testimony of such witness, and yet the jury may have believed the witness. The instructions disregarded must be as to some matter, or of such a nature that it is plain that the jury grossly disobeyed the judge. In this case it is not plain and obvious that the jury disregarded the instructions or any instruction of the court. It is not pointed out to us that any positive instruction was disregarded. The judge of the court below in his order only says that the verdict was in violation of the instructions. It is not stated therein that the verdict was rendered as the result of a plain disregard of the instructions. The same reasoning applies to the evidence. A plain disregard of the evidence must be made to appear. This does not mean that the court thinks the verdict not the correct conclusion from the evidence, but it means that the rule should apply only where the jury plainly, palpably, and grossly disregard the evidence. The rule is well stated and fully discussed in Townley v. Adams,
Respondent, in his brief, particularly designates instruction No. 14 as being disregarded by the jury. This instruction was given at plaintiff's request, and by it the jury were instructed that if the evidence shows that the defendants took from the possession of plaintiff three cows particularly described in the instruction, and that said cows were not sold to the defendant at the constable's sale, and that plaintiff was at the time of the commencement of the action the owner of said three cows, then the jury should find for plaintiff as to said three cows. The court, by the instruction, left it for the jury to determine as to the identity of the cows, the taking of them from plaintiff, and as to whether or not the plaintiff was the owner. The instruction was give upon the theory that the jury had the right to pass upon all these questions. To tell the jury that if they believe from the evidence that certain facts exist they should find a certain way, is not a positive instruction to find a certain way. The jury did not disregard the instructions unless they believed from the evidence that the facts and circumstances narrated therein had been proven. How could the judge say what the jury believed from the evidence? Why did he, by the instruction, leave the jury to find the facts, if in his opinion they would not be justified in finding them except one way only?
It is not necessary to analyze nor discuss the evidence as to the cattle described in the instruction. It is sufficient to *30
say that in any case where the court by an instruction to the jury leaves the jury a free agent to find a fact one way or the other, the jury do not palpably disregard the instruction of the court, within the meaning of section
Respondent claims that the appeal should be dismissed because it is from the order vacating and setting aside the verdict, and that no appeal lies from such order. The claim is, that the appeal should have been from the order granting a new trial. There was no order which by its express terms granted a new trial, but the effect of the order setting aside the verdict was to grant a new trial. The court and the parties all so understood it. The order subsequently made setting the case down for retrial on April 30th was made on the theory that a new trial had been granted. If the effect of the order setting aside the verdict was not to grant a new trial, it would leave a strange condition of affairs. No judgment could be entered, because there would be no verdict. No further trial could take place, because the court in words had not said so. No appeal could be taken from the order as made, because not appealable; none could be taken from the order granting a new trial, because no such order was made in terms; no appeal could be taken from the judgment, because no judgment could be entered. The parties would be tied up in court where neither of them could proceed. The absurdity of such a condition is an answer to respondent's contention. If the effect of the order was to grant a new trial, the effect of the appeal is to bring up for review the order granting the new trial.
In Irwin v. Towne,
It is advised that the order be reversed.
Chipman, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is reversed.
Henshaw, J., Lorigan, J., McFarland, J.