1 Cal. 101 | Cal. | 1850
By the Court,
The respondent on the first day of September, A.D. 1849, caused a citation to be issued, as is contended, to the appellants, which was returned “ executed,” demanding redress against them as trespassers on a certain piece of ground in the Pueblo de San José.
On the 8th day of September, the court rendered the following sentence :—“ It appearing from the documents of the par- “ ties that his (the said Reed) complaint is based on recorded “ original papers, therefore the said Jourdain & Phister must “ desist from further trespassing on said lands and tenements in “ said Pueblo de San José ; and the said James F. Reed is
It appears that the appellants protested against the decision as contrary- to law, and appealed to John T, Richardson, judge of First Instance of said district, for redress, before whom affidavits were made, and testimony taken, and proceedings had in the nature of perpetuating the testimony of witnesses, and much other confusion ensued.
The 26th section of the act of February’ 28th, 1850, provides, that when from the character of the record no tangible point is presented for determination, tins court may remand the cause for new trial in the court below. However regular these proceedings may have been at the time, as merely summary under the law then in force, on the part of the respondent, yet it evidently appears that the appellants ought to have been beard, and should have had a trial. For some cause it seems there was no trial. The sentence was pronounced not upon proof of the actual possession of respondent, hut upon “ recorded original papers.” What was the nature of those “ recorded original papers,” the record does not show. They may have imparted title to the respondent or not. No tangible point is presented by this record upon which this court can act, and no injustice can be done by awarding* a new trial. We are, therefore, of the opinion that the sentence of the court should be reversed, and that the respondent should be permitted to file in the district court of the proper district his complaint, and the appellants their answer, and an issue made up and tried in the same manner as if.no proceedings had hitherto been had, and the costs to abide the .event of the suit.
