Davis v. Le Mesnager

[520]

THE COURT.

This cause was tried in the superior court and judgment was rendered therein in favor of the defendants. An order was subsequently made denying plaintiff’s motion for a new trial. From this judgment and order the plaintiff appealed, and upon the appeal the judgment and order denying a new trial were reversed. (See

Davis

v.

Le Mesnager,

152 Cal. 97, [92 Pac. 76].) Upon the going down of the

remittitur,

the plaintiff moved the court for findings and judgment in his favor upon the prior judgment-roll and the opinion of the supreme court. The motion came on for hearing and thereupon, in support of the motion, there was presented to the court the opinion of the supreme court, the

remittitur,

and the judgment-roll in the superior court upon the former judgment. The defendants objected to this method of procedure and objected to the hearing of the motion and to the entry of judgment thereon. The court below, however, overruled their objections and, over their exception, granted the motion and rendered judgment in favor of the plaintiff. From this judgment certain of the defendants appeal.

The court below erred in disposing of the case in this summary manner. The judgment and the order denying a new trial were reversed by the supreme court upon the former appeal. This made it necessary to try the case again in the superior court. The error which made it necessary to reverse the case was an error of law occurring upon the trial, consisting of a ruling of the court as to the validity of a deed offered in evidence. The plaintiff could not prevail without offering evidence in support of his controverted allegation of ownership, and the court, in this method of procedure, gave him judgment without any evidence whatever.

The judgment is reversed and the cause remanded for a new trial.