27 Cal. 470 | Cal. | 1865
This is an information filed by the Xttorney-Greneral on the relation of Dickenson, alleging that the defendant has usurped the office of Treasurer of Placer County, and that the office of right belongs to the relator. The appeal is from the judg-' ment. We shall consider the errors alleged, in the order in which they are set down in the statement.
First—“ The Court erred in refusing respondent’s motion for a nonsuit.” By the three hundred and thirty-eighth section of the Practice Act, a party who appeals from a judgment or order, with a stateznent annexed, is required “to state specifically the particulars or grounds upon which he intends to rely on appeal.” This rule has not been complied with by the appellant, nor did he in his motions for a nonsuit disclose the grounds of it in the Court below. Most, if not all, the considerations upon which it has been held that a' party, objecting to the introduction of testimony, should state precisely the grounds of his objection, are equally applicable to show, when a nonsuit is moved for at the trial, that the attention of the Court and of opposite counsel, should be particularly directed to the supposed defects in the plaintiff's ease. We not only understand such to be the rule, but consider its observance a matter of much practical consequence. (Mateer v. Brown, 1 Cal. 221; Kiler v. Kimball, 10 Cal. 268; McGarrity v. Byington, 12 Cal. 429.)
Second—“ The Court erred in refusing the testimony of Fellows and Spear.” The respondent “offered to prove by each of these that each informed the relator, before the filing of his official bond, that the same was insufficient and did not ■conpoly with the statute and order of the Board of Supervisors.” The testimony was objected to, and was excluded by the Court on the ground of irrelevancy. There was no
Third—“The judgment of the Court was against law.” There is but one question which, under the findings of the Court, we are at liberty to consider as within the purview of this objection; and that is, whether the Legislature has power to shorten the term for which a County Treasurer is elected —or more largely stated, whether an incumbent of an administrative office created by the Legislature, can be legislated out of office pending the term for which he was elected ? The question is not an open one. It was met and decided in People ex rel. Attorney-General v. Squires, 14 Cal. 12.
Fourth—“The Court erred in ordering respondent to immediately vacate said office.” By the three hundred and twelfth section of the Practice Act, the Court was authorized, not only to determine the right of the defendant, but to determine the right of the relator also; and, on the facts found, there can be no doubt that the judgment was correct on the point covered by the objection.
Fifth—“ The testimony does not warrant either the findings or the judgment of the Court.” It is inexact to say that a judgment is not warranted by the evidence. It may not be warranted by the pleadings, or the verdict, or the findings; and on demurrer to the evidence, or on motion for nonsuit properly made, it may be said that a judgment, entered for the plaintiff, is not warranted by the facts which the evidence tended to prove. The only point raised, then, by the objection now under consideration, is, whether the findings are justified by the evidence, and that question cannot be gone into under an appeal from the judgment. The testimony can only be reviewed on motion for new trial. (Gagliardo v. Hoberlin, 18 Cal. 395 ; Deputy v. Stapleford, 19 Cal. 302; Allen v. Fennon, ante 68.)
Judgment affirmed.