Ross v. Austill

| Cal. | Apr 15, 1852

Justice Anderson

delivered the opinion of the Court. This suit was brought in the Court below, by Ross against Austill & Rowe, upon a contract of limited partnership. The contract is set out in the record. The summons in this case, was issued on the 7th of June, 1851, and served on the appellants on the 8th, citing them to appear at Double Springs on the 1st Monday of July. The counsel of record for the appellants, filed the answer to the complaint on the 18th of June. The cause was tried at Jackson on the 8th of July, and a verdict rendered for the appellee, (the complainant below,) for forty thousand dollars. At the date of the trial, Austill filed an affidavit for a continuance; and upon the rendition of the verdict, the appellants moved for a new trial. The Court overruled it; and made a decree for the amount found by the jury. The appellants took an appeal. An execution was issued in favour of Ross, and levied upon certain mines, in which Austill & Rowe held an interest. The appellants filed a bill before Justice Bennett, then of this Court, and prayed for an injunction to stay the proceedings until the final hearing of this cause; which was granted.

The constitutional objection has been insisted upon by the counsel for the appellants, as to the mode in which the time and place of holding the Court in Calaveras County had been provided for. The Court waive any expression of opinion upon this question. There are other points in the case upon which it should be decided.

The counsel for the appellee insist that this Court is bound to take notice of the history of Calaveras County. This is true, qualified, as affecting the times and places of holding the Courts. The time and place of holding a court, are essential constituents of it; and without them, the Court is not in possession of the right of exercising its full functions. The public knowledge of the times and places of holding courts is intended to be certain, and without doubt. It was the duty of the Court below to take notice of the history of the county, in relation to the seat of justice. It was disregarded; or else the judge would have adjourned the Court without trying any cause. The public mind was in great excitement. But very few votes had been polled in the county, in relation to the seat of justice. It was known that no sufficient notices of election had been posted. There was great confusion, doubt, and contrariety of opinion. To hold the Court at Jackson, under such circumstances, was well calculated to take suitors and counsel by surprise, and to prevent a faithful administration of justice. Under the circumstances of the case, the Court erred in not granting to the appellants a continuance of the cause, upon the affidavit of Austill.

The verdict of the jury is not in conformity with the issues submitted; nor does it appear there was any attempt to correct it. In regard to this, it was competent for the Court to send the jury out again, under its advice. There is a wide variance between the complaint, the finding of the jury, and the written contract of partnership. The Court ought to have granted a new trial.

The decree of the Court goes beyond the verdict, and attempts to cure it. This is a dangerous and highly objectionable practice, and which this Court will not sanction. Justice requires that this case should be sent back, and re-tried.

The decision of the Court is, that the judgment of the Court below be reversed; the writ of injunction, restraining the execution, be made perpetual; that the cause be remanded, and a new trial ordered.