| Utah | Jun 15, 1880
delivered the opinion of the court:
The appellants (defendants below) made their application for patent to the Teresa mine, and respondents filed their adverse claim thereto, alleging their rights thereto under the Richmond mine location; and thereupon, within the time prescribed by law, respondents brought their bill in chancery to quiet title. Issues out of chancery were submitted to a jury, and the jury found for the plaintiffs on all the issues. The court below disregarded the findings of the jury, made other findings, adopting a portion of the findings of the jury, and, on motion, gave judgment for the defendants. The plaintiffs filed their motion for a new trial, which being, by the court, sustained, defendants appeal to this court.
The court below granted a new trial upon two grounds, one being that the court had erred in making new findings and disregarding those of the jury.
The power to disregard or modify the findings of a jury in a chancery cause is inherent in the court, the object of the verdict being not to decide the case, but to instruct or advise the conscience of the chancellor. And this rule is not of modern origin but is hoary with age and plainly laid down and recognized all through the books. 2 Dan. Ch. Pl. & Pr. § 1147; Adam’s Eq. side pp. 376-377; 3 Greenl. Ev. § 261 et seq.; Sibert v. McAvoy, 15 Ill. 108; Ward v. Hill, 4 Gray, 593; Garsed v. Beall, 2 Otto, 684.
But it is claimed that such a rule does not exist under our code practice. If the Practice Act, therefore, does not do away with this rule, it must be considered as still standing
In the case of Wingate v. Ferris, 50 Cal. 105" court="Cal." date_filed="1875-07-01" href="https://app.midpage.ai/document/wingate-v-ferris-5438695?utm_source=webapp" opinion_id="5438695">50 Cal. 105, the doctrine is fully recognized. That was a case of a general verdict in an equity case. Judgment was entered in accordance with the verdict, and a motion for a new trial made and sustained. The appeal was, as in the case at bar, an appeal from the order sustaining the motion for new trial. The Supreme Court of California in that case overruled so much of the order as granted a new trial, and sustained so much thereof as vacated and set aside the judgment, and it then directed the court below to determine the issues of fact upon testimony already taken, or to open the case for further testimony, as the court below in its discretion might deem proper. It thus approved the action of the court below in setting aside the verdict, but says that instead of granting a new trial the court should have proceeded to make findings of fact.
But our Practice Act goes further than the statutes of California or Nevada, and says: “ Chancery cases may be tried by the court, with or without the findings of a jury, upon issues designated by the court.” Civ. Pr. Act, § 181. Tet the Supreme Court of the United States, agreeing with the California and Nevada decisions, recognizes the existence of the doctrine that the findings of a jury in chancery cases is merely advisory, even where the broad provision of our statute does not appear to exist. In Basey v. Gallagher, 20 Wall. 670" court="SCOTUS" date_filed="1875-01-18" href="https://app.midpage.ai/document/basey-v-gallagher-88978?utm_source=webapp" opinion_id="88978">20 Wall. 670, a case which went up from Montana, the court says that “ the relief which equity affords must still be applied by the court itself, and all information presented to guide its action, whether obtained through masters’ reports or findings of a jury is merely advisory.”
There is nowhere in the books, so far as we have been shown.
But if the doctrine were correct it could not affect the case at bar, for here only a portion of the issues were submitted. Other issues were settled by the partiés or by the pleadings, and on all of these and the evidence the whole case was passed upon by the court. Because the court, in thus passing upon the whole case, disregarded the findings of the jury is no reason why that action of the court should be disturbed.
The other reason for granting the new trial was that the court had erred in rejecting evidence to show that the location of the Bichmond mine was made before the 3d of July, 1870, such evidence being offered in rebuttal after defendants had introduced their testimony.
Bebutting evidence is such as explains or repels, rebuts or counteracts evidence that comes out on the defense. It may incidentally support the case made in the complaint, but that is not rebutting testimony which mainly supports the case stated in the complaint and only incidentally goes to explain or repel the evidence in behalf of the defense.
In the suit before us the defendants deny not only that plaintiffs, or those from whom they receive title, ever made their location of the Bichmond on the 26th June, 1870, or at any time prior to the 3d day of July, 1870, but also they allege that plaintiffs’ notice of location is trumped up, antedated and fraudulent, and several times altered. They introduced evidence to support this charge of fraud, etc. To repel and counteract the evidence of the defense on this point, the plaintiffs offered evidence claimed to be in rebuttal, and this was rejected.
The material parts of the evidence thus offered had refer
None of this evidence would, probably, be admissible if offered in chief to support the case stated in the complaint. They only go to repel and weaken the evidence offered by the defense to support the charge of fraud made in the answer. The matters referred to in evidence, as proposed by the plaintiffs, occurred before the 3d day of July, 1870, and before the defendants had made their location, and before it was known that there would be any conflicting claim; and, if the facts were as claimed, the tendency evidently would have been -to repel and counteract the effect of the evidence for the defense on the question of fraud. The evidence would no doubt in a slight manner go to support the case of the plaintiffs as made out in the complaint, but this would have been only incidentally. The evidence should have been admitted, but its rejection was such an error as frequently happens in a long, tedious and hotly-contested case. Its rejection, however, may have had a material effect upon the conclusion finally reached, especially when it appears that the weight of evidence admitted before the jury was in favor of the defendants.
The testimony of Morey and Gilman to impeach Davis should also have been admitted, and its rejection was error, as the testimony of Davis justified it. By reason, therefore, of the rejection of this testimony the granting of the motion for a new trial was proper.
The language of the respondents’ brief in this case, respecting the judge before whom it was tried, is such as ought never
The order of the court below granting a new trial is affirmed with costs, and the cause remanded for trial in accordance with this opinion.