Drake v. Palmer
Before: Anderson
Synopsis
Appeal from the Superior Court of San Francisco.
The appellants filed their complaint against the respondents, stating that on the 8th of May, 1851, the defendants, with force and arms, entered certain premises in San Francisco, then lawfully occupied by the plaintiffs, and forcibly and unlawfully evicted the plaintiffs therefrom, and removed building materials, lumber, &c., which the plaintiffs had thereon; and caused a building which the plaintiffs had commenced erecting to be torn down, &c.; and that the defendants still retained, and refused to allow the plaintiffs to enter or occupy the premises ; whereby the plaintiffs had sustained damage in their business, and in money paid for said building materials, &e., to the amount of $20,000; for which the plaintiffs claimed judgment, with costs.
The defendants answered, 1st, denying generally the allegations in the complaint. 2d. That on and long before the first of May, 1851, the defendants were seised and possessed of the premises mentioned in the complaint, and had erected on a portion thereof, (describing it,) a certain building; that on the said first day of May, the defendants demised said building and the portion of the premises covered thereby to the plaintiffs, for the term of one month then next ensuing, for a certain rent therefor paid by the plaintiffs; by virtue whereof the plaintiffs entered upon said building and portion of the premises, and continued in possession thereof until the fourth day of May, 1851, when the said building was destroyed by fire; and thereupon the defendants offered the plaintiffs to determine said demise, and repay said rent, or to renew said lease upon reasonable terms; which the plaintiffs refused, and wrongfully entered upon other portions of said premises, not included in said demise, and commenced certain erections thereon; and because the plaintiffs were, at the said time when, &c., unlawfully trespassing as aforesaid on said other portions of said premises, the defendants did, at the said time when, &c., remove said erections so wrongfully being made thereon by the plaintiffs, and evict the plaintiffs therefrom, doing no more damage in that behalf than was necessary for the purpose aforesaid; and so, if the plaintiffs had sustained any damages in the premises, the same were caused by their own wrong, &c.; and traversing that the defendants were guilty of any other of the supposed trespasses mentioned in the complaint than those justified in that plea. 3d. That after the demised building was burned as stated in the second plea, the plaintiffs, on the day of the alleged trespass, were-wrongfully and unlawfully putting a new erection on the premises; whereupon the defendants entered, and removed such new erection, doing no unnecessary damage, &c.; and traversing that the defendants were guilty of any other of the alleged trespasses.
Justice Anderson delivered the opinion of the Court. The appellants obtained a verdict in the Court below, for the sum of $4562.66 and costs. The judgment was ordered by the Court to be entered for that sum, with interest at the rate of ten per cent, per annum from the date thereof. A new trial was moved by the respondents, and ordered by the Court. The plaintiffs objected to the motion being heard, on the ground that the motion Was not entered of record, and was not within time. From the [182]decision of the Court they appealed. It is not necessary to state the case at length; nor is there anything in the record of which the appellants are entitled to avail themselves, as to the notice for new trial. No new principle, nor one of any difficulty whatever, is involved in the case. The only question for the consideration of this Court is, as to the discretion exercised by the Court below in granting a new trial. The power to grant new trials, is one exclusively of discretion;—a legal discretion. The abuse of it, only would justify this Court in interfering. The question of the measure of damages, does not now come in here. The Court below have exercised their discretion; and this Court ought not to control it, in the absence of any perception that it has been" abused. The adoption of any different doctrine, would lead to endless confusion, as well as traverse all established rules of law.
The judgment of the Court is, that the order for the new trial in the Court below, be affirmed.
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