Carter v. Turner

BARNARD, P. J.

On June 19, 1919, as a part of a real estate deal, the defendant transferred to the plaintiff two parcels of real property, together with a note for $12,000 executed by one J. B. Pilcher and secured by a second trust deed on another piece of land. On the first trial of this action, before Judge Wallace of Tulare County, the court found that the defendant had made certain false representations in connection with the value of the note referred to. Upon appeal the judgment was affirmed in all respects except one. It was held that an improper measure of damage had been applied and the case was referred back to the trial court with directions to take such testimony as might be necessary to establish the relative value of the

[298]

properties at the time of the transfer and to report the same back to the Appellate Court.

(Carter

v.

Turner,

90 Cal. App. 193 [265 Pac. 870].) Later, the provision for reporting the matter back to the Appellate Court was stricken out and the

remittitur,

as issued, directed the trial court “to take such testimony as may be necessary to establish the relative value of the properties at the time of the transfer”.

Judge Wallace having died in the meantime, further proceedings were had before Judge Lamberson and a new judgment was entered, from which this appeal is taken.

It is first contended that the order directing the trial court to take evidence upon the question of the value of the respective properties did not authorize the trial court to enter any judgment. While the order made did not specifically direct the trial court to enter a new judgment, the effect of the order was to remand the ease for a new trial upon the issue of damages alone. A new trial on this issue having been ordered, it necessarily follows that the court had jurisdiction to enter judgment thereon.

(In re Mahon,

71 Cal. 586 [12 Pac. 868];