66 Cal. 525 | Cal. | 1885
Each of the parties to this suit—plaintiff and defendants—claim under a deed from one August Hemme, who in March, 1878, executed to the plaintiff a deed, which conveyed to him the property in question, unless he had previously conveyed it to the wife of defendant Weir. The question in the case thereof is, whether or not Hemme had previously conveyed the property to Mrs. Weir. It is a conceded fact, that there was no deed of record to Mrs. Weir, but it is a further admitted fact that at the time of the conveyance to the plaintiff, Mr. and Mrs. Weir were in possession of the property, residing there with their family. Some further facts appear with
As has been observed, an important fact to be ascertained was whether the grantee of the deed in question was James C. Weir or his wife, Elizabeth Weir. After James C. Weir had testified that the deed was made to his wife, that it had been drawn by Chambers, and acknowledged and delivered by Hemme on the 3d day of May, 1877, and before- any evidence
The testimony of Weir, to the effect that Lawton told him he was dealing with a tricky man, was clearly inadmissible. It was hearsay, and tended to discredit the testimony of the person thus characterized. Nor was the testimony of Weir, to the effect that two weeks after drawing the deed Chambers wrote a note to Mrs. Weir, saying that if she would return the deed in question he would insert in it “ wife of James C. Weir,” admissible for any purpose, for it was the unsworn declaration of a stranger as to the contents of the deed. Yet it was the declaration of the man who acted as scribe in drafting the deed, and went to the very gist of the controversy. Chambers had been examined on behalf of the plaintiff in advance of the trial, under a commission, upon interrogatories settled by consent of the respective parties to the action, and in which was included no reference whatever to the alleged note of May 17,1877. In his deposition, Chambers testified that the grantee in the deed was James C. Weir, and that the deed was not delivered at all, but was retained by Hemme, because the consideration was not paid. Of course, if Chambers’ testimony was true, it should have operated a defeat of defendants’ case. The alleged note
The action here being on the equity side of the court, the verdict of the jury was but advisory; and until the findings of the jury were adopted by the court, there was no decision, and, therefore, nothing upon which to base a motion for a new trial. For this reason the notice given by the plaintiff April 9, 1881, was premature and ineffectual, and was, therefore, properly abandoned. (Bates v. Gage, 49 Cal. 128.)
Within proper time after the decision of the court, a notice of motion for a new trial in due form was given, which was followed, within the time duly extended for that purpose, by a statement on motion for new trial and a bill of exceptions. The fact that the statement and bill of exceptions were incorporated in one paper, does not render either invalid. Being prepared within due time, and being properly settled by the
Judgment and order reversed, and cause remanded for a new trial.
McKinstry, J., and McKee, J., concurred.