Pierson v. McCahill

23 Cal. 249 | Cal. | 1863

Crocker, J.

delivered the opinion of the Court—Kobton, J. concurring.

This case has been previously before this Court on two separate appeals. One will be found reported in 21 Cal. 122, and the other in 22 Id. 127. In the first appeal the judgment for the defendant was reversed. The second case was an appeal from interlocutory orders, one of which was a denial of a motion to change the venue, in which the action of the Court below was affirmed. While this second appeal was pending, the action was brought on for trial by the defendant, and the plaintiff applied to the Court for a continuance, upon the ground, among others, that the appeal from the order refusing to change the place of trial was still pending. The Court refused the continuance, and compelled the plaintiff to go to trial, which he now assigns as error.

The plaintiff contends that, having filed the undertaking on this appeal in the sum of three hundred dollars, required by Sec. 348 of the Practice Act, the appeal was perfected, and it operated as a stay of all further proceedings in the case in the Court below until such appeal was determined, under the provisions of Sec. 353. We think such is the proper construction of the statute upon the subject. In cases of appeal from an order refusing a change of venue, the statute has required no other or further undertaking than that prescribed by Sec. 348. The necessity that there should be a stay of proceedings in an appeal from such an order is apparent; as otherwise the party appealing might be forced to a trial in the wrong county, before the appeal was determined, and thus he would lose all benefit from his appeal in case the order should be reversed; or else we would be compelled to hold that such reversal would operate as a reversal of any judgment which might in the meantime have been rendered against the appellant.

Sec. 353 was evidently intended to provide for a stay of proceed-. ings in cases of this kind. It is true that that section provide s that “ the Court below may proceed upon any other matter included in the action, and not affected by the judgment, or order appealed from.” But the very matter affected by the order appealed from in this case was the right of the Court below to try the case, and whether the trial should not be had in some other county, before another Court. It was a matter affecting the trial of the case, and no trial could properly be had until the appeal from the order relating to the proper place for that trial had been determined. All other matters, except the trial of the case, could be properly proceeded with during the pendency of the appeal.. It follows that the Court erred in refusing the continuance.

The defendant’s witnesses testified that Henderson was the agent selected by the creditors to receive the proceeds of the goods for the creditors, and that the William Hgigins mentioned in the agreement was but a sub-agent of Henderson; and this was objected to by the plaintiff, on the ground that it was allowing parol testimony to vary the written agreement as to who was to take charge of and sell the goods. We do not consider this objection tenable. .It was merely explanatory of the relation of one of the parties to the agent named; Henderson being one of the creditors who signed the agreement. If the creditors saw fit, after the agreement was executed, to change their agent, and put Henderson instead of Higgins to sell the goods, they had a right so to do ; and parol proof of that fact was not varying the agreement, but merely showed a subsequent change therein.

The appellant further contends that the Court below erred in finding that there was a mistake in the agreement as alleged in the answer, and erred in correcting the mistake, and in rendering judgment according to the agreement, as thus corrected. The simple question to be determined was, whether one of the terms of the agreement had been omitted by mistake in drafting the contract. It was purely a question of fact, to be determined from all the evidence and all the circumstances of the case. It appears that an agreement had been drawn up by an attorney; but, it being quite voluminous, the parties requested Miller, one of the creditors, to shorten it. He undertook to do so, but byynistake left out one of the terms of the agreement, as drawn up by the attorney, to wit: that the defendant was to be released upon the payment of fifty per cent, upon his debts. It does not appear to be disputed that this was one of the terms of the first instrument drawn by the attorney, and that that instrument embodied the contract of the parties. Although the parol evidence is conflicting, yet this fact is a very strong circumstance to sustain the finding of the Court. We see no more reason for disturbing this finding of the Court in this case than in other cases. The weight of testimony, we think, is in favor of the finding. The judgment should not, therefore, be disturbed on this ground; but as the Court erred in refusing the continuance of the cause, for the reason above given, the judgment is reversed, and the cause remanded for a new trial.