40 Cal. 628 | Cal. | 1871
delivered the opinion of the Court, Temple, J., and Rhodes, C. J., concurring:
The plaintiff having recovered in the Court below, the defendants omitted to move for a new trial, but appealed from the judgment, and have brought up the evidence in a statement on appeal which assigns as errors certain rulings of the Court in respect to the admission of evidence; and also, that giving full effect to the evidence, the judgment should have been for the defendants. There appears to have been no contest as to the facts, the evidence of which was wholly record and documentary. The plaintiff claims that without a motion for a new trial this Court cannot review the evidence in order to ascertain whether the proper judgment was rendered upon the facts proved, even though there was no controversy as to the facts. But in the case of Treadwell v. Davis, (34 Cal. 601), this Court held to the contrary, and if that decision be accepted as a correct exposition of the law on this point it will be decisive against the plaintiff. Since that decision was rendered, and upon more mature reflection, and after a careful review of the authorities, I am satisfied the proposition announced in that case on this point is not tenable. When a party complains that the evidence was insufficient to justify the verdict, or decision, the appropriate remedy is by a motion for a new trial; and, in pursuing this remedy, the statute requires him to specify in his statement in support of the motion the particulars in which the evidence was insufficient. In this method the attention of the Court and counsel is particu
It will suffice to say on this point that such a practice is not authorized either by tbe letter or spirit of the-code; and experience has demonstrated that it would lead to the-most perplexing results. We announce it, therefore, as a settled rule in this Court, that an^ appellant will not be per
Bor these reasons tbe defendants in this case will not be permitted to allege tbat tbe judgment was not justified by tbe evidence.
It appears, however, from tbe statement on appeal tbat tbe plaintiff, at tbe trial, offered in evidence in support of bis complaint tbe docket of tbe Justice of tbe Peace, showing tbe action of tbe Justice’s Court in an action pending therein between tbe parties to this action, and wbicb resulted in a judgment for tbe plaintiff for tbe sum of $600 and upward, and wbicb judgment is tbe foundation of tbe present action. He also offered in evidence a complaint and summons in said cause, from tbe former of wbicb it appears tbat tbe cause of action was a promissory note made by tbe defendants bearing interest, and wbicb contained a stipulation tbat if suit should be brought thereon there should be added to any judgment wbicb might be rendered therein for tbe plaintiff fifty per cent, of tbe principal and interest remaining unpaid at tbe date of tbe judgment. It appears from tbe justice’s docket tbat be entered a judgment in favor of tbe plaintiff for tbe sum of $422.98, as tbe principal and interest then due, and also for tbe further sum of $211.49, being fifty per cent, of tbe principal and interest, as authorized by tbe stipulation in tbe note. Tbe defendants objected to tbe admission of this evidence on tbe ground tbat tbe judgment was void on its ■face, as being in excess of tbe jurisdiction of tbe Justice. Unless tbe sum $211.49, wbicb was included in tbe judgment, can be treated as stipulated interest in addition to tbe two and a half per cent, per month which wáS reserved on