Moore v. Bates, 46 Cal. 29

Moore v. Bates

46 Cal. 29 | Cal. | 1873

By the Court:

It is not questioned by the appellant that the Court erred in its order excluding all evidence of the plaintiff in support of the allegations of his complaint, upon the ground that no bill of particulars had been furnished to the defendant in pursuance of the requirements of his notice and demand therefor. It is clear that at least the count for the value of the use and occupation of plaintiff’s land did not present a claim upon which a bill of particulars could be required. It is contended, however, that this error cannot be presented upon a motion for a new trial, but that the plaintiff’s remedy was by appeal from the judgment. In support of this position, the appellant urges that since the Court, upon the motion of defendant, excluded all evidence upon the part of the plaintiff, there was no trial of the case, in the true sense of the word, and hence no new trial could be asked or granted. The appellant’s position cannot be maintained. It is not essential to a trial that evidence should be introduced before the Court or jury. The case was regularly called for trial upon the day set for hearing, upon issues *31made by the complaint and answer. The trial then commenced, and terminated with the judgment in favor of the defendant. If the plaintiff had offered any evidence whatever, and the Court had erroneously excluded a material portion, it would not be questioned that he would have been entitled to a new trial by reason of the error. We cannot see that a different rule should prevail, when the Court erroneously excluded all evidence in support of the averments of the complaint.

Order affirmed.