Wingate v. Ferris
50 Cal. 105
Cal.
1875
Check Treatment
By the Court, McKinstry, J.:

The complaint contains a statement of a cause of action such as would entitle the plaintiff to equitable relief.

*108We entertain no doubt that the District Court had power to set aside the general verdict and the judgment entered thereon. As the cause was one of equity cognizance, the facts should have been found by the court, or specially by a jury, under an order of the court. The order vacating the verdict and judgment was proper, but we can see no reason why the testimony should be retaken.

That portion of the order appealed from which directs a new trial, reversed; that portion thereof which orders that the verdict and judgment be vacated and set aside, is affirmed. And the District Court is directed, upon the testimony already taken (and upon such other and further testimony, if any, as may be taken, in case the said District Court shall, in its discretion, open the cause for further testimony), to proceed to determine the issues of fact joined herein and to adjudge and decree final judgment in this action.

Mr. Justice Crockett did not express an opinion.