Howe v. Independence Consolidated Gold & Silver Mining Co.

29 Cal. 72 | Cal. | 1865

By the Court, Sanderson, C. J.

Orders of the Court below upon applications made under the sixty-eighth section -of the Practice Act will not be disturbed by this Court except in cases of gross abuse, where the power of the Court has been exercised in a manner which is calculated to defeat rather than advance the ends of justice, which', in our judgment, has not been done in the present case.

The order, however, is erroneous in not imposing the payment of - previous costs as a condition of setting aside the judgment. • In such cases the payment of costs is expressly required by the statute, and the order must be modified accordingly. Thus modified, the order will be allowed to stand, but the respondents must pay the costs of this appeal.

Ordered accordingly and the cause remanded for further proceedings.