61 Cal. 622 | Cal. | 1882
This action was brought to recover of defendant certain personal property, consisting of sixteen head of horses, twenty-two head of cattle, and a wagon, averred to be the property of the plaintiff, and to be detained from her by defendant. The cause was tried by the Court without a jury, and j udgment was rendered for defendant. Appeal was taken by plaintiff from the judgment and an order denying her motion for a new trial.
Issue is joined by the pleadings on the title to the property sued for and each part thereof. The findings do not pass on all such issues. There should be a clear and distinct finding of the ultimate facts on which the title, or claim of title, of each party to such property, and each portion of it, is rested. In failing so to find, the Court erred, and for this the judgment and order must be reversed.
The Court ruled as a conclusion of law that the laws of Indiana and Minnesota in relation to the property rights of husband and wife must be presumed to be the common law, there being no proof of what such laws were. Such ruling is contrary to the decisions in this State, which hold that in the absence of proof it should be presumed that such law is the same as the law of our own State. (Norris v. Harris, 15 Cal. 253; Hickman v. Alpaugh, 21 id. 225; Hill v. Grigsby, 32 id. 60.) A question arose in Smoot v. Russell, 1 Mart. (N. S.) 523, whether an instrument executed in Alabama was a mortgage or a sale. On this point the Court said: “ The law of Alabama has not been proved, and conformably to the uniform- decisions of this Court, we must decide this case by the provisions of our own.” And in Allen v. Watson, 2 Hill, (S. C.) 319, the Court, speaking of the law of Georgia, invoked in a case before them; said that if they were obliged to determine the question before them, “ in utter ignorance of what the law of Georgia is, we must resolve it by our own rule, for the obvious reason that we have no other.” (See also Monroe v. Douglass, 5 N. Y. 452.) Such presumption is indulged for the reason that there being no proof of the law of
Some points are made as to the admissibility of the testimony of Hoyt, Bagley, and Orr; but as no exceptions were reserved to the rulings of the Court admitting the testimony, they can not, as has been frequently held, be considered in this Court.
Judgment and order reversed, and cause remanded for a new trial.
Sharpstein, J., and Moericon, C. J., concurred.