Burgess v. Doran

[660]

STURTEVANT, J.

The plaintiff commenced an aetion in unlawful detainer against the defendant. The defendant appeared and answered. A trial was had before the trial court sitting with a jury. The jury returned a general verdict in favor of the defendant. The plaintiff moved for a new trial. The motion was based on all of the statutory grounds except as to excessive damages. The trial court granted the motion and in its order it did not specify on which of the grounds of the motion it based its order. The defendant appealed under section 953a of the Code of Civil Procedure.

The defendant makes several points which are not controverted by the plaintiff, but in support of the order the plaintiff calls to our attention the condition of the record and contends that the trial court did not err in granting the motion. In this connection we think the plaintiff must be sustained.

In the defendant’s answer an equitable defense was pleaded. In brief, that equitable defense was that the plaintiff had by certain conduct granted to the defendant a renewal, for a ten-year period, of a lease which it is conceded commenced on October 2, 1915, and expired October 2, 1925. After the jury had been impanelled the plaintiff and defendant stipulated to such facts that there remained no issue to be tried except the issues presented by the equitable defense. The defendant proceeded to introduce her evidence and the case was duly presented to the court and jury. On submitting his case the plaintiff presented and requested the trial court to submit to the jury certain special issues, but they were not presented to the jury by the court. On the other hand, the court gave to the jury two forms of general verdicts—one in favor of the plaintiff and one in favor of the defendant. The jury returned a general verdict in favor of the defendant. Later the plaintiff made concurrently two motions. One motion was in the form of a request for the trial court (1) to disregard and ignore the verdict; (2) to decide and determine said action and file its findings; (3) to decide and determine the equitable issues and file its findings; and (4) to decide and determine all of the equitable issues tendered by the answer and to file its findings. The other motion was the motion for a new trial which we have noted

[661]