31 Cal. 95 | Cal. | 1866
Lead Opinion
Action upon a promissory note. Defense, part payment. The case was called for trial on the 18th of May, 1865, and the trial was proceeded with before the Court, a jury having
“ [Title of case.]
“ L. B. Mizner being' duly sworn, says that he is the attorney for the plaintiff in the above entitled action, and that since trial of said action he has discovered that the pretended receipt offered in evidence in said case, purporting to have been signed by said S. C. Hastings in favor of said D. N. Hastings for one thousand and eighty dollars, was in fact signed by said S. C. Hastings for Lloyd Tevis, and that the name ‘ Lloyd Tevis ’ has been removed from said receipt without, as this deponent believes, the consent of said S. C. Hastings of Tevis, and that said fact or at least some word or words, or name has or have been removed from said receipt in fraud of and to the prejudice of said Hastings in this action, and that the same appears upon the face of said receipt; that this deponent had never seen said receipt until it was produced in the trial of this case yesterday, and that no copy of said receipt appears in the pleadings or was ever served upon the*97 deponent or the said plaintiff, to the best of deponent’s information and belief; that deponent objected to the introduction of said receipt on the ground that the same had been altered.
“ Whereupon deponent asks that this case be reserved for further consideration until the next regular term of the Court; that this application is not made for delay, but that justice may be done.
“ L. B. Mizner.
“Subscribed and sworn to before me, this 19th day of May, 1865.
“ W. J. Costigan, Deputy Clerk.
“And thereupon moved that the action be opened for further testimony and continued until the next regular term of Court. The defendant objected on the ground that it was ‘ irregular’ and ‘ error in law ’ for the Court, having commenced the trial of the action, not to proceed to dispose of it at the same term. The motion was granted, the Court being satisfied, on inspection of the receipt mentioned in the 'affidavit of the plaintiff’s attorney, that said receipt had been altered and mutilated after it had been delivered to the defendant. Defendant duly excepted.
“At the following September term the action was continued by stipulation, at the defendant’s request, and being called on the 18th day of January, 1866, testimony in the said action was heard by the Court and judgment rendered for the plaintiff ; it appearing and having been proved to the satisfaction of the Court, at the trial in January, 1866, that the said pretended receipt, mentioned in Mizner’s affidavit, had been altered in fraud of plaintiff’s right, by cutting the words ‘ Lloyd Tevis,’ or some other words, from under the name of said S. Clinton Hastings, and that the sum of one thousand and eighty dollars, mentioned in said pretended receipt, had been paid upon the four thousand dollar note due to Tevis and S. C. Hastings from the defendant, and not upon the note of one thousand and fifty-seven dollars sued upon in this action.”
The only question presented is whether the Court had discretionary power to reopen and continue the case after having announced orally from the bench that it had found on the issue in favor of the defendants.
By the one hundred and eightieth section of the Practice Act, “ upon the trial of an issue of fact by the Court, its decision shall be given in writing,” etc. Not that it is now necessary to the validity of a judgment, in an action tried by the Court, that findings of fact and conclusions of law should be filed; that necessity is dispensed with by the Act of 1861. (Acts 1861, p. 689.) Still until the decision itself has been entered in the minutes, or reduced to writing by the Judge and signed by him and filed with the Clerk, the case has not been tried to a legal intent. This statute mode of deciding or evidencing the decision of cases is exclusive. The Judge then, in the case at bar, was not precluded by his verbal announcement from the bench, from giving the case further consideration either on his own motion, or on the suggestion of a party or of an amicus curiae.
The judgment is affirmed.
Concurrence Opinion
I concur in the judgment.
