16 Cal. 113 | Cal. | 1860
Baldwin, J. concurring.
The notice of the motion for a new trial in this case was not given in time, and the proceedings based upon such notice must, therefore, be disregarded. The trial terminated with the rendition of the verdict, and the notice should have been given within two days thereafter. It is urged that as the verdict was special, it was necessary to invoke the action of the Court before a judgment could be entered upon it, and that, therefore, the trial itself did not in contemplation of law terminate until the judgment was rendered. We cannot assent to this view. The facts were settled by the verdict, and it only remained for the Court to pronounce the conclusion of the law upon the facts found. If the Court erred in this respect, the error is a proper subject of review, and a motion for a new trial was unnecessary. If the verdict was not satisfactory, the right to correct it did not depend upon the judgment, and the steps for that purpose should have been taken within the time limited by the statute. The better practice in such cases would be to settle aE questions of this character in advance of the final action of the Court.
It is argued by counsel, that inasmuch as the party aggrieved by a verdict is alone entitled to object to it, the right to do so must be regarded as resulting from the judgment, and depending for its exercise upon the ultimate action of the Court. The error of this argument is obvious. It makes the exercise of this right subservient to the opinion of the Court upon a matter of strict law in no way connected with any question to which it relates. The Court acts upon the verdict as it is,
In Peabody v. Phelps, (9 Cal. 213) though the precise question in this case was not involved, a similar opinion was expressed in regard to it. “ Upon facts found,” said the Court, “ whether by report of the referee or special verdict of a jury, the direct action of the Court must be invoked before judgment can be entered. Though the trial in such cases has ended, judgment does not follow immediately as a matter of course; and the time within which the notice of motion to set aside the report or verdict must be given, should be the same in the two cases, and date from the filing of the report or the rendition of the verdict.”
Upon a careful and thorough examination of all the questions arising upon the record, we are satisfied that no error has been committed for which the judgment should be reversed. The right of defendant, Hill, to represent the stock voted by him at the election of officers of the corporation, was established by the verdict. The shares with reference to which his right is controverted, were assets in his hands as surviving partner of the firm of Hill & Devane. The business of the firm was unsettled, and so long as that continued to be the case, he alone was entitled to the possession and disposition of the partnership effects. His rights, in this respect, were sanctioned and protected by the express provisions of a statute. The Act of May, 1850, regulating the settlement of the estates of deceased persons (sec. 198) provides as follows:— “ When there was any partnership existing between the testator or intestate at the time of his death, and any other person, the surviving partner shall have the right to continue in possession of the effects of the partnership and to settle its business, but the interest of the deceased shall be included in the inventory and appraised as other property. The surviving partner shall proceed to settle the affairs of the partnership without delay, and shall account with the executor or administrator, and pay over such balances as may from time to time be payable to him in right of his testator or intestate. Upon the application of the executor or administrator, the Probate Judge may, whenever it may appear necessary, order the surviving partner to render an account, and in case of neglect or refusal, may, after notice, compel it by attachment. And the executor or administrator may maintain against him any action which his testator or intestate could have maintained.” (Wood’s Dig.
We think that no consequence is to be attached to the circumstance that a portion of the stock represented by Hill stood upon the books of the corporation in the name of Devane alone. This was prima facie •evidence that it belonged to the separate estate of Devane, but it was competent for the defendants to show that it was in fact the property of the partnership. The cases cited from New York proceed entirely upon a statute of that State, and the reasoning in some of these cases indicates very clearly, that in the absence of the statute the conclusion would have been different. We are unable to perceive that the other authorities referred to have any bearing upon the case. It would seem, upon principle, that the real owner of stock should be entitled to represent it at the meetings of the corporation, and that the mere fact that he doeso not appear as owner upon the books of the company, should not exclude him from the privilege of doing so.
No error appearing upon the record, the judgment is affirmed.
