74 Cal. 353 | Cal. | 1887
This is an appeal from an order vacating and setting aside a judgment.
The question grows out of the contest of a will, in which several special issues were framed and tried before a jury. The jurors returned a general verdict in favor of the contestants, and found for them on the issues numbered 3 and 7, and against them on those numbered 5 and 6; and they disagreed and returned no verdict on those numbered 1, 2, and 4.
Upon the verdict so returned a judgment, denying probate of the will was entered on the thirtieth day of September, 1886, and within ten days thereafter the motion to set it aside was made.
It is claimed for the contestants (appellants here) that the respondents' only remedy was a motion for new trial or appeal, and that the court had no jurisdiction to make the order complained of.
We think the court had jurisdiction to make the order, and that its action under the circumstances was proper. The general verdict was not authorized, and consequently furnished no support for the judgment. (Code Civ. Proc., secs. 1312, 1314.) The finding upon issue No. 3 was a finding of conclusions of law, and not of fact. (Paulson v. Nunan, 64 Cal. 290.) And the finding upon issue No. 7 was upon an immaterial and irrelevant matter. (Estate of Toomes, 54 Cal. 509; 35 Am. Rep. 83.)
We have, then, a case where there was simply a mistrial, and where there was no lawful authority to enter any judgment. In this respect the case would have been the same if there had been no pretense of a trial.
As the superior court has no terms, a motion to set aside a judgment should be made within a reasonable time, and we think the motion here was so made. (Ex parte Gilmore, 71 Cal. 624.)
The order should be affirmed.
Hayne, C., and Foote, C., concurred.
The Court.—For the reasons given in the foregoing opinion, the order is affirmed.
