Kaiser v. Dalto

COOPER, C.

This action was brought to enjoin the defendants from entering upon a strip of land, alleged to belong to plaintiff, along the north side of his lot, forty-six feet and six inches long and five and three-fourths inches wide, and from building a wall and committing other trespasses thereon. The case was tried before the court, findings filed, and judgment entered for plaintiff, granting the injunction as prayed. Defendants have not appealed from the judgment. They

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made a motion for a new trial, which was denied, and this appeal is from the order denying the motion. The first point discussed in appellants’ brief, and the one upon which they mainly rely, is, that the complaint and findings do not support the judgment, for the reason, it is said, that the defendants were in possession of the strip of land at the time the action was commenced, the acts of trespass were already committed, and that an injunction will not lie to prohibit mere trespassing upon the lands of another. We cannot examine the question upon this appeal. A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a court or jury or by referees. (Code Civ. Proc., sec. 656.) It may be granted on the ground, among others, of “insufficiency of the evidence to justify the verdict or other decision, or that it is against law.” (Code Civ. Proc., sec. 657, subd. 6.) The phrase “or that it is against law,” as used in the section, is certainly not a very clear or unambiguous expression. But it must be read in connection with the section immediately preceding it, and, as thus read, be a reason for a re-examination of an issue of fact. If the facts are correctly found, an erroneous judgment is but a wrong legal conclusion from such facts. The question of law as to whether or not the judgment is the correct legal conclusion from the facts found, might have been raised and determined by a motion in the court below (Code Civ. Proc., secs. 663, 663¿), or by an appeal from the judgment. Defendants have not availed themselves of either remedy. They cannot now be granted the right to re-examine an issue of fact in order to correct a wrong judgment upon facts which were properly determined. It must now be regarded as the settled rule that where all the issues of fact raised by the pleadings are found upon by the court, and the findings are correct, that an erroneous judgment drawn from those facts cannot be corrected by means of a motion for a new trial.