J. H. Coghill & Co. v. Marks

29 Cal. 673 | Cal. | 1866

By the Court, Shafter, J.

It was a matter of no consequence to the respondent whether the judgment against Marks, assigned to the intervenor, was fraudulent or not, inasmuch as the attachment lien of the respondent was older than the lien of the intervener; and for the same reason it was unnecessary to inquire how much was due upon the judgment. The judgment was given in evidence simply for the purpose of showing that the relation of creditor and debtor existed between Samuel Marks and Robert Marks, and that Gross had succeeded to his rights by assignment. The proof of the judgment, coupled with the assignment of it, put Gross in a position to intervene in the action under the statutes; and as there was no allegation in the answer to the intervention, charging that the judgment had been got up merely for the purpose of masking an intervention in the suit of the plaintiffs against the common debtor, we consider the proof was decisive. The Court, however, considered that it had erred in admitting it at all, and on that ground granted a new trial on the plaintiff’s motion.

If there was nothing in the record upon which the order could be maintained, except the mistaken ground upon which the Court put it, we could not do otherwise than reverse the order and affirm the judgment. But there are other grounds. The defendant in the suit not having answered, the plaintiffs had judgment against him for nine hundred and eleven dollars and sixty-four cents. Under the issue taken on the intervention, the Court found, however, that as to four hundred and sixty-five dollars and eighty-five cents, parcel thereof, the action had been brought prematurely; but the Court has not found that the plaintiffs were guilty of any fraud in that particular, and the whole tendency of the evidence is the other way. But the Court, instead of reducing the prior lien of the plaintiff to the amount which was due at the date of their attachment, postponed it altogether to the subsequent lien of the iutervenor, directing the judgment of the latter to be first paid out of the proceeds of the property, which was erroneous. We consider also that the plaintiffs were entitled to a new trial on the ground of surprise.

The objection urged by the appellant that the order granting a new trial must stand, if at all, upon the ground on which the Court below put it, is not well taken. The one hundred and ninety-sixth section of the Practice Act provides that “the Court or Judge granting or refusing a new trial shall state in writing the grounds upon which the same is granted or refused;” and that is all that is said upon the matter. If it was intended to so limit the power of this Court in error that in reviewing the orders and judgments of District Courts it could do no more than review the reasons given for entering or rendering them, the Legislature has signally-failed to express the intention. A rule of that kind would be both anomalous and improvident. Anomalous, for it would put us upon reviewing judicial arguments rather than judicial action; and improvident, inasmuch as rights would not unfrequently be lost for no better reason than that they had been adjudged to be such upon wrong grounds.

It is urged that we have frequently decided that parties moving for new trials must be confined to the error assigned. But in that class of cases, if the specification does not include all the grounds of reversal embodied in the statement, the fault is that of the moving party. But where the Court properly grants a new trial, but for a false reason, or grants it without exhausting the argument in favor of it, neither the mistake in the one case nor the omission in the other lies at the door of the party—and thus the analogy relied on fails.

The order appealed from is affirmed.