13 Cal. 295 | Cal. | 1859
Terry, C. J. concurring.
A preliminary motion is made by Respondent to dismiss this appeal. The ground is, that the order appealed from is not a final judgment or order, disposing of the merits of the case, but is only a rehearing in equity, which is not appealable matter,
Eor convenience and uniformity, we have held that the Practice Act, regulating proceedings in civil cases, applies as a general rule, as well to equity as common law suits. The statute gives a right of appeal from orders granting or overruling motions for new trials; and this is substantially, if not literally, such a motion.
The questions involved in this dispute grow out of this state of facts : Cronin & Markley, once merchants of San Francisco, in 1851 made an assignment of goods to Bartol & McVickar; the assignors owed one Pendleton; he assigned his claim to one Baker, defendant in this suit, who held for himself and one Jenkins. Baker, in 1854, filed his bill against Bartol—McVickar then being dead—charging fraud in the assignment, and that these assignees had received over thirty thousand dollars from the assigned property—goods—over and above all incumbrances, etc. which sum, it is charged, was, or should be, subject to the claim of the plaintiff. This claim had been reduced to judgment. Bill prayed appointment of receivers. The Court, by its order, directed Bartol to submit to the appointment of a receiver, or to give bond to perform any decree that might be rendered against him. Bartol gave the bond, and plaintiffs here, Riddle & Eaton, were his sureties. This case was tried in November, 1855. Lockwood and Baldwin were witnesses on the trial, and swore for the plaintiffs, fixing, by their testimony, the value of the goods assigned at forty thousand dollars. The case was decided for plaintiffs. Defendants appealed to Supreme Court; decree affirmed. (See 6 Cal. 483.) No stay of proceedings was had, and Baker, soon after the decree, sued Riddle & Eaton on their bond; got judgment. Case appealed to Supremo Court; judgment there affirmed. (7 Cal. 551.) After this affirmance
Several very formidable points of exception are taken by the defendants to this proceeding—to some of which it has vexed the characteristic ingenuity of the counsel for the Respondent to give a plausible answer. But it is not necessary to consider these questions, as, in our judgment, another point, arising on the proofs, is clearly fatal to the whole case.
Upon the trial of the case of Baker v. Bartol, before Judge Shattuek, these facts appear: That the ease was continued several times at request of defendant; when called for trial and the evidence closed on the part of the plaintiff the defendants procured a postponement to get in evidence; after this period elapsed, and the defendant not appearing, one or more adjournments were had before Bartol arrived; when he arrived he said that he had evidence which would explain and contradict the evidence that had been introduced by the plaintiff, and that he must have it there; the case was again adjourned. EFo such evidence, after all these delays, was procured, and the case was decided after being fully argued.
It seems that the only matter of controversy was the value of these goods. There appears to have been no insuperable difficulty to procuring full proofs on this subject, for, even on the trial of this suit below, occurring a long time after the first.
To hold that a party may stand by, and, discovering improper practices, or illegitimate arts, in the management or conduct of his case by his antagonist, neglect to countervail them when in his power, or when he sees incorrect or even perjured testimony offered, refuse to go further with the case, and then rely upon the fact that this course has been pursued as a ground for avoiding the judgment, would make litigation perpetual. The very object of a trial is, to afford each party an opportunity of contesting fully all the proofs and all the principles of law relied on by the other side; and if false testimony be introduced, it must be met and combatted, when that is practicable, at the trial, or so soon after as possible—if the falsity is not, and could not, with all proper diligence, be discovered before. In this case no such efforts appear to have been made. The defendant, Bartol, had full notice by the pleadings of what was alleged and what would be attempted to be proven against him. The issue of fact
But it is urged that these plaintiffs, his sureties, to answer the decree, stand on better ground. We do not think so. We admit, that if there had been collusion between Bartol and the plaintiffs to get and suffer this judgment, the case might, and probably would, be different. But there is no pretense of such collusion. It has been observed that the obligation of these sureties is to answer the decree of the Superior Court. The decree was for the payment of the money sued for. They contested their obligation in the Court below, and lost the case, and then, on appeal, lost it again.
Their liability was collateral to the main suit; but it was made by the terms of their obligation to depend upon its issue. They were not parties to the original litigation, any more than a surety on appeal is a party to the suit in the Appellate Court. They had no rights in Court as contesting parties. They assumed the responsibility of a contestation by other parties, and of the result of a controversy which they could not control. If the suit were mismanaged, if—for example, not otherwise—incompetent counsel had been employed, if the defendant neg
Several other points wo think equally fatal to the Respondents; but this one is enough. We think that the matter relied on in the bill could only be availed of by way of bill of review, and that this bill is fatally defective as such. But it is not necessary to elaborate this point, or to refer to any others; for what we have said is conclusive of the merits.
The order granting the new trial is reversed, and the decree dismissing the bill reinstated.
Ordered accordingly.
See Pico v. Webster, Sheriff, and his sureties, post.